Month: June 2017
Personal Data Protection Act 2010
Intro of PDPA Regulation of the processing, use and disclosure of the personal data in our country, Malaysia has been a subject of the interest as well as hot debate topic started since the late of 1990s. Even though the use, disclosure and processing of personal data in the certain industries, for example the banking and also finance, telecommunications industries as well as healthcare, is regulated and controlled by the some industry-specific legislation, but there has not been any about data protection legislation of the general application in our country Malaysia until 2010. There are several data protection legislation have been drafted and proposed over these years, which including the proposed of Data Protection Bill 2001 as well as the Data Protection Bill 1998, but none of these came to the fruition. Then, a new Personal Data Protection Act 2010 known as PDPA has recently finally enacted successfully due to the serious increasing need to curb those unauthorised use of the personal data in our country, Malaysia. The Personal Data Protection Act 2010 was passed through Malaysian Parliament in month of May 2010 while received the Royal Assent on date 2 June 2010 and then legislations will be come into operation on date which appointed by minister of Information Communications and Culture with notification in Gazette.
The Personal Data Protection purposely to protect and safeguard personal data by requiring those data user to comply with some certain obligations as well as conferring some certain rights to the data subject which in relation to his personal data. Reason of PDPA enactment Malaysia, after such a long wait, finally (PDPA) Personal Data Protection Act 2010 has finally been passed and came into fruition. PDPA 2010 actually seeks to regulate and control the processing of the personal data of one’s involved in the commercial transactions by the data users so as to safeguard and provide protection to individual’s personal data, by that safeguarding the interests of individual. The passing and enactment of the PDPA is timely, in order for the information can be transferred as well as transmitted seamlessly and that sometimes, effortlessly. As we know, from the traditional snail mail to those social networking tool like “Tweet-ing”, personal and often such vital and very important information of individuals can now be very easily shared just with a click perhaps. New technologies nowadays and the flow of changing market trends are big contributing to the increasingly important role of the information in this global market economy. Such information, in particular the personal data of the individuals which involved in the commercial transactions, has come into a valuable commodity. Last but not least, such legislation to protect and safeguard personal data has been enacted and applied in jurisdictions such as Canada, European Union, New Zealand and Hong Kong.
The Act in PDPA is similar to legislation which enacted in those countries. Comparison with Foreign Statutes There has been much expectation on the Personal Data Protection Act 2010 (“PDPA”) as it would be the legislation in Malaysia which handles with the protection of personal data. The Act was enacted and passed in 2010 and was recently published on the newspaper on 15th November 2013. It should be noted that the principles of data protection laws included in the PDPA are quite identical to the principles in other jurisdictions such as the UK and Singapore.
The PDPA handles to any personal data processed in Malaysia or is planned to be processed in Malaysia regarding commercial transactions by any person settled in Malaysia or person who is not settled in Malaysia but applies the equipment in Malaysia and the desire is not to transit through Malaysia. “Commercial transactions” under the PDPA is defined as any transaction of a commercial nature which contains swap of goods or services, agency, investments, financing, banking and insurance but does not contain a credit reporting business. Credit reporting business such as CTOS explorations would not be classified as a commercial transaction under the Act. “Personal Data” under the PDPA seems to be adequately broad to protect the common types of personal information gathered in day to day transactions for instance; name, address, telephone number, email address, banking details and identification card numbers. However, as mentioned, the information has to be related to commercial transactions. As contrast with the UK DPA 1998 as the act emphasis on the capability to classify an individual relies partially on the data held and partially on other information, the data adhered will still be “personal data”. The definition also particularly contains views about the individual, or what is intended for them. Hence, we can assume that UK act does cover generally on the definition of the ‘Personal Data’. PDPA 2010 regulates the data by processing of personal data under the virtue of the section 5 and there are seven principles in “Processing” of personal data includes collecting, recording, holding or storing the personal data or carrying out any operation or set of operations on the personal data which includes: i) organisation, adaptation or alteration; ii) retrieval, consultation or use; iii) disclosure by transmission, transfer, dissemination, or otherwise making available; iv) alignment, combination, correction, erasure or destruction.
The PDPA does not apply to non-commercial transactions, the Federal and State Governments of Malaysia nor does it apply to any personal data processed outside Malaysia. Whereas in United kingdom, the legislation regulating personal data and processing personal information will have several ways in determining it and the Directive and the DPA protect two usual categories of information: information processed, or intended to be processed, fully or partially by electronic means; and information processed alternatively than by automatic means which form part of, or are intended to form part of, a ‘applicable filing system’. In most circumstances it will be a relatively straight forward task to determine: (a) whether the information is ‘data’ for the purposes of the DPA; and (b) whether the information in question relates to an‘identifiable individual’ and consequently, to determine whether ‘personal data’ is being processed. Furthermore,the DPA introduces two more types of manual processing of information which, if the information relates to an identifiable individual, will involve processing of ‘personal data’. These extra categories of processing are implemented in the DPA definition of ‘data’ and involve: processing information as part of an ‘accessible record’; and processing recorded information held by a public authority. Sensitive data Under the Act, a difference has been classified between “sensitive personal data” and “personal data”. “Sensitive personal data” is: “… any personal data consisting of information as to the physical or mental health or condition of a data subject, his political opinions, his religious beliefs or other beliefs of a similar nature, the commission or alleged commission by him of any offence or any other personal data as the Minister may determine by order published in the Gazette”.
[1] Any revelation of sensitive personal data must be done in accordance with s.40 of the Act, which wishes a data user to be more cautious in processing sensitive personal data. Due to the attributes of sensitive personal data, a greater limits is imposed for data users in processing it. A data user must not process sensitive personal data unless with the clear permission of the data subject. While ‘’clear permission’’ is not defined in the Act, arguably, the data subject should be mandatory to provide his exact and precise permission to the processing of his sensitive personal data.
However the requirement for precise permission from the data subject, The Act also grants the processing of sensitive personal data where it is illustrated under section 40 of the Personal Data Protection Act 2010.While the United Kingdom’s Data Protection Act 1998 stated that whereby Sensitive personal data means personal data consisting of information as to – (a) the racial or ethnic origin of the data subject, (b) his political opinions, (c) his religious beliefs or other beliefs of a similar nature, (d) Whether he is a member of a trade union (within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992), (e) his physical or mental health or condition, (f) his sexual life, (g) the commission or alleged commission by him of any offence, or (h) any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings.
[2] The classification of sensitive personal data in United kingdom are widely drafted so that, for example, information that someone has a broken hand is categorized as sensitive personal data, even though such information is comparatively matter of fact and clear to anyone seeing the individual regarding with their leg in plaster and using crutches. Obviously, features about an individual’s mental health, for example, are basically much more “sensitive” than whether they have a broken hand. Religion or race, or both, can always be understood with changing degrees of credence from dress or name. For instance, many surnames are identified with a specific race or religion, or both, and may assume the race and religion of the individuals involved.
Nevertheless, it would be ridiculous to take all such names as “sensitive personal data”, which would mean that to clench such names on customer databases you had to fulfill a situation for processing sensitive personal data. However, if you processed such names particularly because they represented race or religion, for instance to deliver commerce materials for goods and services intended at individuals of that race or religion, then you will be processing sensitive personal data. In any affair, you must beware when making presumptions about individuals as you could be compiling incorrect personal data. Hence, regards to the ‘sensitive data’, Malaysia shares the same view with the United Kingdom. Case Analysis In the case of H( A Healthcare Worker) v Associated Newspapers Limited [2002] EWCA Civ 195, the applicant, H had been a health care worker, but was no longer working and he had diagnosed HIV positive. H commenced an action against his previous employer, N seeking a declaration that the notification was contrary to the Data Protection Act and an injunction to prohibit N from obtaining the records. He had obtained an order under the rules to protect his identity within the proceedings. The court held that the order against the newspaper obtained as part of the first action, but the newspaper was restricted to publish anything which might reveal his identification directly or indirectly. [3]In this case, the judge states that the identity of the patient shall be well protected, it shall be very privacy and must be confidential. This case clearly shows that the information of data detail of the patient shall not be publish direct or indirectly. In the case of Douglas v Hello! [2003] EWHC 786 (Ch), a claim for breach of confidence, breach of Data Protection Act 1998 and breach of Article 8 as a consequence of the unauthorized publication against Hello! of the wedding prototroph of Mr and Mrs Douglas.
The defendant taken without consent and the exclusive right to photograph the wedding had previously been sold to a rival magazine, Ok. The court states that the defendant is taken to be a data controller by which the unauthorized pictures represent personal data and the publication in England is considered as part of the operations covered by the requirement of the Act. [4]In other words, a data controller shall be responsible for the publication of the data which he is no authorized to publish yet. Meanwhile, a data controller shall be responsible for the publication of the copies which reproduce data that has previously been processed. In this case, the defendant does not has the right to take photograph on the wedding and the unauthorized publish shall be considered as in breach of the data protection act.
Based on this case, it is well to be said that there is a need and how important of the act shall be come into force, so that the personal data have a safeguard to protect it. According to the case of Lord Ashcroft v Attorney- general & Department for International Development [2002] EWHC 1122(QB), There are articles published in newspaper on 1999 and 2000 revealed confidential and sensitive personal information about Lord Ashcroft. The information which contained in documents leaked from the Foreign Office and the second defendant. The issue in this case is whether the Data Protection Act 1984 provided a private law remedy in damages for the leak of the document in breach of the data protection principle. The court held that the private law right to damages conferred by the act would be allowed only to the extent that it sought damages under the section for the disclosure of document. [5]As under this case, it clearly show that the data protection act could only be invoke where there is an actual infringe or publish of the document or data which would be defamatory toward someone.
In the case of Campbell v MGN Ltd (QBD) [2002] EWHC 499 (QB), the claimant was photographed of a Narcotics Anonymous (“NA”) meeting and the “Mirror” published an articles consist of the photographs of her with the other attendee’s of the meeting’s faces pixilated to protect their identities. The articles with headline read ‘Naomi: I m a drug addict’ and consist of information relating to Ms Campbell’s treatment for drug addiction, including the number of NA meeting she had attended. The claimant claimed damages for breach of confidentiality and compensation for the articles and subsequent ones published by the “Mirror” under s 13 of Data Protection Act 1998. The claimant states that the “Mirror” was entitled to publish that she was a drug addict and the fact that she was having therapy but the information of therapy being obtained through NA and the detail of her attendance at meeting shall be private and confidential. The court held that the defendant may publish the articles as consent by the claimant by which she is having drug addict and receiving her therapy. But the defendant shall not obtained and publish the detail of the attendance and the therapy without consent of the claimant, the detail of the claimant’s attendance at NA shall be confidential. [6]Therefore, the claimant was entitle dot the remedy for the disclosure of the detail of her treatment. By refer to this case, a person is permit to publish the contents which is consent by someone and prohibited to publish any personal data which may lower the dignity of someone.
Cases after the emforcement of Data Protection Act 1998, United Kingdom. In Campbell v Mirror Group Newspapers Ltd
[7] ,the claimant, Naomi Campbell, the well known supermodel has sued the “Mirror” Newspaper Group Ltd over the allegations contained in the articles that she was addicted to drug and was engaging the in the meeting of Narcotics Anonymous. The article comes with a photo which shows that she was leaving Narcotics Anonymous. However, source of the newspaper’s information was not revealed.
The fact that MsCampbell is addicted to drug has never been disclosed by any social media. In fact she used to tell the media that she would be someone whom forever immune from drug despite their prevalence in modeling industry. MsCampbell claimed damages for breach of confidence, alleging that her right to privacy contained in Art8 of the European Convention of Human Rights (ECHR) outweighed the newspaper’s right to freedom of expression contained in Art10. She also sought compensation for a breach of the Data Protection Act 1988 (UK). One of the issue was whether she can claim for her right to privacy under Data Protection Act 1998. There are three requirements laid down in the data protection principle under s4 of the Data Protection Act 1998 (UK) .The processing must have been fair, lawful, and only carried out if at least one of the conditions in Schedule2 was met, and in the case of sensitive personal data. The “mirror” newspaper had contravened the Act. The exemption contained in s32 where data is processed only for the special purposes and with a view to publication only applies prior to publication and has no application once publication has taken place. The court has uphold the claim and held that details of MsCampbell’s attendance at Narcotics Anonymous had the necessary quality of confidence to sustain an action for breach of confidence , one of the reason is that photographs were capable of having the quality of confidence, and had that quality in this case. Court further strengthen that those who deliberately court publicity are also deserve to have privacy in their life and and should be respected by the media unless there exists an overriding public interest consistent with Art10(2). Therefore, MsCambell has been awarded to aggravated damages of A£1000, for the additional distress suffered by the newspaper’s conduct, following the publication of the article. In case of Edem v Information Commissioner[8], thefirst defendant decline to order the disclosure or the names of three members of the staff of the second defendant Financial Services Authority in response to an information request by the claimant. Nevertheless, the claimant appealed on grounds including that the names of the employees were notpersonal dataand it would not be possible to find them.
The issue here now was whether the disclosure of the names of the officials could be withheld on the basis that they were ‘personal data’and that disclosure of that information would contravene the first principle of Part 1 ofSch 1to theData Protection Act 1998. The court has dismissed the appeal and held that to disclose the names of the three individuals would be to disclose theirpersonal data. In the case of Kjo v Xim[9], the claimant forged a will of his maternal grandmother. Later on, he pleaded guilty as his action was being detected and being sentenced to nine months imprisonment.
After that, he moved and lived in Hong Kong. He was dogged for a long time by communications sent to various employers, potential employers and official bodies by his mother’s brother, the defendant, informing them of his conviction and sentence for forgery. The claimant alleged that that only came to his attention and the end of 2008, as the defendant had been at pains to conceal what he had been up too. The claimant has applied an injunction against the defendant to restrain him from communicating any further information about the 1992 conviction. His ground was there could be no legitimate purpose served by the defendant continuing his campaign.
Subsequently, he applied for summary judgment based onData Protection Act 1998. The issue was whether summary judgment ought to be entered in favor of claimant on data protection claim based on Data Protection Act 1998 The court dismissed claimant’s application as there had not been sufficient evidence of intention on the defendant’s part. There was also no basis upon which the court could at the instant stage grant summary judgment.
[1] Section 40 of the Personal Data Protection Act 2010
[2] United Kingdom Data Protection Act 1998
[3] https://swarb.co.uk/h-a-healthcare-worker-v-associated-newspapers-limited-ca-27-feb-2002/
[4] https://www.1cor.com/1315/?form_1155.replyids=576
[5] https://www.5rb.com/case/lord-ashcroft-v-attorney-general-department-for-international-development/
[6] https://www.5rb.com/case/campbell-v-mgn-ltd-qbd/
[7] (2002)54 IPR 645
[8] [2 014] EWCA Civ 92
[9] [2011] EWHC 1768 (QB)
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Parliament as a Check on Government
Scrutinising the executive is one of the imperative duties of the UK Parliament. It ‘seeks to limit and control the exercise of power by making those who hold the power- the executive- directly and constitutionally responsible to the legislature’.
[1] Thus, it monitors power balance by implementing adequate checks and balances of the activities undertaken by the executive. Such measures subjecting the government to different, critical types of scrutiny are necessary to form a coherent, effective and stable authority in a democratic society. However, this is not always the case since various factors prevent the Parliament from scrutinising the executive effectively.
This essay will firstly focus on explaining the role of Parliament in terms of the doctrine of separation of powers and the opportunities it has to hold the government to account. Furthermore, I intend to demonstrate numerous weaknesses of the mechanisms used to control the exercise of power and, finally, suggest possible measures strengthening the process of scrutiny undertaken by the Parliament. In order to explain and fully understand the constitutional role of Parliament, its powers and responsibilities, it is essential to consider the composition of parliamentary system inside which the machine of government operates. In the UK, Commonwealth countries, and many other nations, Parliament is the highest authority
[2] whereas the Government, also known as the executive, is the institution in charge of Governing a country. Parliament can be identified as a bi-cameral legislature composed of the lower house, The House of Commons, which holds the decision making autonomy, and the House of Lords, upper chamber of Parliament with a limited legislative power, working inter alia as a check on the powers exercised by the government. In theory, not only does the bi-cameral legislature exist to ensure democratically created policy and legislation but also to safeguard the country from the autocracy or the rise of dictatorships. Separation of powers becomes a fundamental tool for avoiding the emergence of such dangers. Locke stated in his Second Treatise of Civil Government: ‘it may be too great a temptation to human frailty…for the same persons who have the power of making laws, to have also their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making and execution, to their own private advantage’.
[3] The idea behind the doctrine of separation of powers seeks to ensure no arbitrary abuse of powers and therefore stresses the importance of the role Parliament plays in scrutinising the executive as well as the need for implementing appropriate checks and balances.
Nevertheless, there is no strict separation of powers in UK since the government and Parliament often work together particularly in developing laws. Complete absence of cooperation between the three limbs of the government could result in a constitutional deadlock and therefore, ‘complete separation of powers is possible neither in theory nor in practice.'
[4] The collaboration between the legislature and the executive does not mean that parliament should soften its efforts of scrutinizing the government.
Robustly scrutinizing the executive indicates that the nation is strictly adhering to the principles of democracy[5]. The government must be accountable and responsible to the citizens it governs. Therefore, in the UK and other established democracies, Parliament scrutinizes the executive through various tools outlined in the country’s constitution and other set regulatory systems[6]. The most common mechanisms adopted by the Parliament are debates, ministerial questions and select committee. The debates taking place in the House of Commons look at the government policy as well as general issues of national and international importance. Parliament can call Ministers to account by forcing them to explain their actions on behalf of the public whereas backbenchers are given an opportunity to question and suggest alternatives to the proposed government policies[7]. The more controversial issues discussed during the parliamentary debates can arguably attract significant media attention[8]which may be beneficial for the scrutiny of the executive process since it encourages public participation. However, whilst debate is an essential part in pursuing government’s accountability by compelling Ministers to justify their positions[9], it has a limited value and does not constitute a sufficient scrutiny of the Government.
Generally, MPs are informed of the topic of discussions beforehand, thus they usually can prepare a generic answer. Furthermore, it should also be noted that the objective of holding debates is often undermined by a large influence of the ‘whips’ and members of the leading party resulting in a smaller number of defeats for the governing party. This method of scrutiny, therefore, may serve as an outset or aid a general executive check-ups. Introducing a person or body directly responsible for keeping the right order of the debate and ensuring it does not turn into political argues might enhance the effectiveness of this method. Issues that require deeper attention should be examined using another scrutinizing mechanism, such as Parliamentary questions. It may either be in oral or written form. All ministers are expected to attend question time at least once every four weeks on the rota basis[10]. The purpose of parliamentary questions, according to Erskine May, is to ‘obtain information or to press for action’[11]. Constitutional obligation imposed on ministers to provide truthful information with regards to fulfilling their ministerial duties is an effective way of ensuring that they are au fait with the activities undertaken in their department. In practice, however, not only are ministers notified of questions allowing them to prepare answers beforehand but are also required to discuss the matters relating only to the area of their responsibility and refuse to disclose anything that would not be of public interest[12]. There is also the Prime Minister Questioning time occurring on Wednesdays, which theoretically is an effective way of scrutinizing the executive since the Prime Minister is the head of the executive. In practice, though, questions from the opposition MP’s are put forward to the Prime Minister in advance of the question time, allowing him to consult it with his cabinet colleagues and to prepare the appropriate answer.
Hence, it would rather be wrong to imply that this mean of scrutiny is fully effective in bringing the activities of the government to account.According to Tomkins, the effectiveness of oral parliamentary questions in scrutinizing the executive and hence testing and ensuring accountability is doubtful[13]. While answers to written questions may not enjoy high media publicity as that received by oral and other parliamentary debates, the executive has sufficient time to provide all the necessary information. However, in reality ministers tend to often reveal no more than it is necessary. Fortunately, the Scott inquiry report prompted the legislature to adopt various reforms that guided how executive departments should draft answers to parliamentary question to ensure their credibility[14]. Some of the reforms taken were ensuring the House of Common Select Committee on Public Administration performs annual inquiry on Ministers’ answers to various parliamentary questions to ensure they answer as per the set guidelines. The committee then publishes report, highlighting some of the improvements already made in the answering of the question and recommending those areas that still need to be looked at[15]. Generally, the committee has continued to play a significant role in ensuring the executive is open enough to guarantee political accountability.
Their efforts guarantee that parliamentary questions act as an effective tool of scrutinizing the executive. It has increased the effectiveness to an extent whereby the parliament may use this mechanism to force the executive to disclose information it would have otherwise preferred not to disclose[16]. Select committee is the third mechanism that parliament has at its disposal to further pursue the accountability of the executive. They are defined in ‘the New British Politics’ as: “Committees of the House of Commons and the House of Lords that consider general political issues which are wider than a particular piece of legislation”[17]. Thus, they are mainly focusing on monitoring and scrutinising the executive duties of policy creation and implementation by government rather than only its legislative functions. The structure of select committees continues to be the same until the time when a new government is elected, in which case the existing members are replaced in order to reflect the change in government. For the fact that select committees focus on specific policy areas, it can be suggested that they are a form of an extremely useful mechanism available in scrutinising particular areas of the policy making process. A unique attribute of these committees is the fact that they are largely comprised of backbenchers, Members of Parliament. The composition of the members of the committee reflects the general composition of the House of Commons.
This is arguably one of the fundamental weaknesses of the select committee since it allows the Government majority to dominate the minority. The small size nature of the select committee is, however, a positive attribute. It allows for a small manageable group of MPs to develop specialized and detailed knowledge on important aspects of Government administration[18]. There is sufficient evidence to prove that the select committee system is the most efficient mechanism used by Parliament to scrutinize the executive. In fact, the introduction of the select committee system has been cited as the most notable parliamentary reform of the twentieth century[19]. It, therefore, follows without saying that strengthening Parliamentary committees, especially the select committees, is one of the most effectual ways of enhancing the parliament’s abilities to scrutinize the government. The question that now begs for an answer is how to strengthened parliamentary committees, particularly the select committee.
The Liaison Committee in 2000 suggested some of the reforms that could be undertaken to enhance the effectiveness of select commitees in performing their scrutiny role[20]. These suggestions included remunerating the chair of the committee, reducing the power of the whip by removing his/her power to choose committee members, granting committee adequate resources, and ensuring committees follow up on executives to ensure their recommendation and direction for guaranteeing accountability are being implemented[21]. So far, most of Liaison Committee’s recommendations for reforms have been adopted[22]. Going forward, reforms that strengthen parliamentary committee should be adopted regularly. The committees are likely to be strong if the turnover rate of its members and chair is low. Therefore, measure that ensures committee chair and members have incentives to work for a long period in the committee should be adopted. The ability of the committee to conduct research and acquire crucial information should also be enhanced.
This can be done by training and providing committee with sufficient resources needed to acquire the necessary expertise even from external sources. Also very important is ensuring the committees receive quality and accurate information about executive governance in an easily accessible manner, otherwise an effective committee may not achieve its full potential. The transparency and accessibility of this information can be guaranteed by applying laws that compel the Government to provide such information without any hesitation. All loopholes the executive might use to conceal essential information from the parliament must be eliminated[23]. Parliament should also work with other stakeholders in scrutinizing the executive[24]. Such stakeholders include civil society, the media, electorate, and the public since they might be an important source of crucial information concerning the performance of the executive. They might also have expertise that might not be at the disposal of parliament. Therefore, they could uncover executive issue more easily than parliament.
Such collaboration could provide useful information that might act as basis for conducting further scrutiny on certain functions of the Government. In conclusion, scrutinizing the executive is arguably the main role of the parliament. Performing this role effectively is an indication of a democratic nation. There are many ways available for the parliament to exercise its role and since they supplement each other, we should stress the importance of all of them. However, evidence presented in the essay shows numerous deficiencies in this process preventing Parliament from effectively controlling the exercise of the Government’s power.
The tendency of ministers to give, previously prepared, generic answers to questions during debates and question times undermines the value of this scrutinising medium which calls for implementation of an element of surprise forcing ministers to answer questions spontaneously. It seems to be clear also that the ability of the legislature to hold the executive to account and closely examine the policy making process depends largely on the size of the government’s majority in the Parliament[25]. Similarly, same problem arises with select committee members who are chosen by the Prime Minister and whose power tends to be enjoyed by the backbenchers making the outcome of the decisions favourable for the leading party. The Select Committee, however, arguably is the most effective method used by Parliament because it allows for a deeper scrutiny of political accountability issues. It seems apparent that there is a need for enhancing Parliament’s capacity to hold the government to account, therefore, to make them even more effective, appropriate measures strengthening the process of scrutiny should be adopted. Perhaps, introducing independent person or body to make sure debates and question times are carried out more effectively and as a result enhancing the input of this methods in controlling the exercise of the government’s power, could be a good starting point. Bibliography A W Bradley, K D Ewing,Constitutional and Administrative Law(14th, Pearson Education Limited, Harlow 2007) p.87 Erskine May’s Treatise on the Law, Privilege, Proceedings and usage of Parliament (24th edn)( London: LexisNexis, 2011), p. 358. I, Budge, I Crewe, D McKay, K Newton,The New British Politics(14th, Pearson Education Limited, Harlow 2007) 425 J. Levy. Strengthening Parliament’s Power of Scrutiny? An assessment of the introduction of Public Bill Committees, (London, University College London, 2009),15 Michael Rush,Parliament Today(1st edn, Manchester University Press, Manchester 2005) p.3 Roger Masterman, Colin Murray,Exploring Constitutional and Administrative Law(1st, Pearson, Harlow 2013) 606 Philip Norton, Baron Norton of Louth,The Commons in Perspective(1st, Longman, 1981) 119 Parliament, ‘Parliament and Government’ (parliament.uk 2014) <https://www.parliament.uk/about/how/role/parliament-government> accessed 22 December 2014 Second Treatise of Civil Government John Locke (1690), Cases and Materials on Constitutional and Administrative Law By Brian Thompson, Michael Gordon p.27
162
[1] Michael Rush,Parliament Today(1st edn, Manchester University Press, Manchester 2005) p.3
[2] Parliament, ‘Parliament and Government’ (parliament.uk 2014) <https://www.parliament.uk/about/how/role/parliament-government> accessed 22 December 2014
[3] Second Treatise of Civil Government John Locke (1690), Cases and Materials on Constitutional and Administrative Law By Brian Thompson, Michael Gordon p.27
[4] A W Bradley, K D Ewing,Constitutional and Administrative Law(14th, Pearson Education Limited, Harlow 2007) p.87
[5] Parliament, op.cit.
[6] Adam Tomkins, Public Law (1st edn, Oxford, Oxford University Press, 2003), p. 160
[8] Ibid.
[8] Ibid.
[9] Philip Norton, Baron Norton of Louth,The Commons in Perspective(1st, Longman, 1981) 119 [10] Tomkins, op. cit. [11] Erskine May’s Treatise on the Law, Privilege, Proceedings and usage of Parliament (24th edn)( London: LexisNexis, 2011), p. 358. [12] Roger Masterman, Colin Murray,Exploring Constitutional and Administrative Law(1st, Pearson, Harlow 2013) 606 [13] Tomkins, op.cit., 161 [14] ibid [15] Ibid 161 [16] Ibid 161 [17] I, Budge, I Crewe, D McKay, K Newton,The New British Politics(14th, Pearson Education Limited, Harlow 2007) 425 [18] Tomkins, op. cit. 162 [19] J. Levy. Strengthening Parliament’s Power of Scrutiny? An assessment of the introduction of Public Bill Committees, (London, University College London, 2009),15 [20] Tomkins, op.cit. 166 [21] Tomkins, op. cit., 167 [22] Tomkins op. cit., 168 [23] Levy, op. cit., 17 [24] Levy, op. cit., 17 [25] Masterman, op. cit. 606
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Case Study of Potential Liability in the Law of Tort
Introduction In this paper, I will advise Druid Sons Ltd as to its potential liability in the law of tort, specifically in regard to the losses and injuries caused to David and Percy, respectively, by the discharge of excess chemical fumes from its waste treatment plant; and, more generally, in regard to potential claims from nearby residents and businesses in regard to the interference caused to their TV, broadband and mobile phone reception. While it is likely that each of these potential categories of claim would be brought in the tort of private nuisance[1], it should be noted that this tort has developed into two separate categories, defined by the nature of the damage suffered, each with its own particular legal requirements. Before one can advise on which category should apply in any given case, it is first necessary to understand the historical and, to some extent, public policy context of this development: Historically, the tort of private nuisance was considered to be a strict liability tort. However, during the Victorian era, there was growing concern that the strict liability nature of this tort would interfere with the industrialization process[2]. Therefore, in the case of St Helens Smelting Company v Tipping (1865)[3] a distinction was introduced between the approach which should be adopted in cases where “the alleged nuisance produces material injury to [a] property,[4]” and the approach which should be adopted when the nuisance complained of involves “personal inconvenience and interference with one’s enjoyment, one’s quiet, one’s personal freedom [or] anything that discomposes or injuriously affects the senses or the nerves…[5]” In the former case, the tort of private nuisance was to be considered a strict liability tort; whereas, in the latter case, the Court, when determining whether or not to impose liability, was deemed entitled to consult such factors as the reasonable residential expectations[6] and also the personal sensitivities of the complainant. With this development in mind, let us now turn to examine the likelihood of David and Percy being able to bring successful claims against Druid & Sons in the tort of private nuisance, and also the likelihood of claims being brought by other residents for interference to their TV, broadband and mobile phone reception: David v Druid & Sons in the tort of private nuisance: The first thing to note is that David will only be able to bring a claim against Druid & Sons if he possesses a proprietary interest in the land in question (i.e. the land on which the grass was being grown)[7]. On the facts, there is no indication that David does not possess such an interest. In regard to which branch of the tort will apply in this case: As per our earlier analysis, because the damage suffered by David is material in nature, in that its extent does not depend upon his own preferences and/or sensitivities, the strict liability branch of the tort of private nuisance will be applicable, and it is therefore irrelevant whether or not the Druid & Son recycling plant existed before David commenced using his land for rearing Jersey cows[8]. In regard to proving that the damage suffered was actually caused by the excess chemical discharge in question: So long as the existence of this excess discharge can be proved on the balance of probabilities and also that the chemicals in question are likely to interfere with the health of livestock, if ingested, then the Court will not require David to prove that it was this chemical discharge which caused his Jersey cows to become ill.
This damage will likely be presumed in accordance with the principle handed down in the case of Fay v Prentice (1845)[9]. In regard to David being able to satisfy the test of remoteness applicable to the tort of private nuisance: In the case of McKinnon Industries Ltd v Walker [1951][10] it was held that damage caused to crops, by the excess emission of Sulphur Dioxide, from a neighbouring industrial plant, was not too remote a type of damage to be deemed actionable in this tort. In my opinion, if this type of damage is to be considered actionable in the tort of private nuisance, then so too should the damage arising as a foreseeable and direct result of crops becoming contaminated in this way: Where grass crop is being grown for the purpose of feeding livestock then, if one accepts that the damage to these crops is actionable, then it follows that damage to the livestock as a result of their eating these crops will also be deemed actionable by the Courts, although only to the extent that this damage has affected the value of the land[11]. In regard to the defences available to Druid & Sons: It is unlikely that it will be able to rely upon the defence of statutory authority, even if it has complied with its statutory obligations under the relevant environmental regulatory instruments, unless it can be shown that the excess emissions complained of were an unavoidable result of the licensed industrial activities being undertaken[12]. In this case, the excess emissions could have been prevented, presumably, by employing a higher capacity fume collection system. It will also be impossible for Druid & Sons to rely upon the defence of twenty years’ prescription, because this would require evidence that the plant has been emitting excess amounts of chemical compound for a continuous period of twenty years, which is not the case, as the excess emissions complained of were ‘unexpected’ and a result of a ‘particularly busy period of work’. In conclusion, it is likely that David will be able to bring a claim against Druid & Sons in the private tort of nuisance; although the damages available to him will be limited to the damage caused to his the value/ amenity of his land. In this regard, he will not be able to recover the cost of his veterinary bills via the tort of nuisance, but will be entitled to some compensation for the temporary (or permanent) loss of the amenity of his land, presuming that he had to relocate the cows to another field, or decontaminate the land in order to restore its utility. In order to recover these specific veterinary costs, it will be necessary to bring a concurrent claim in the tort of negligence. David v Druid & Sons in the tort of negligence: While there will be no difficulty establishing a duty of care, in light of the physical proximity of the parties[13], because the emissions in question were ‘unexpected’, it might be possible for Druid & Sons to argue that they were not in breach of this duty because there was no way that any waste plant, however competent, would have predicted these effects. If the Court is satisfied that the plant did adhere to all relevant professional standards, it is highly unlikely that a claim for negligence brought by David would be successful[14]. However, if the excess emissions could have been predicted as a result of accepting a larger than usual amount of work, then it is likely that Druid & Sons will be considered to have acted in breach of its duty of care towards David. However, in order to claim damages for the veterinary costs, David must prove that, on the balance of probabilities, his cows would not have required treatment ‘but for[15]’ the negligence of Druid & Sons. The result of this enquiry will depend upon expert testimony. Presuming that factual causation can be established, the final element of the tort of negligence which must be satisfied is the test for remoteness of damage. The appropriate test in such cases is one based upon factual assessments of reasonable foreseeability[16]. I see no problem here: In the case of Stewart v West African Terminals Ltd [1964][17] it was held that “it is not necessary that the precise concatenation of circumstances should be envisaged…if the consequence was one which was within the general range which any reasonable person might foresee…and anticipate.” In conclusion, presuming that David will be able to prove factual causation on the balance of probabilities, he will likely be able to bring a successful claim in the tort of negligence to recover the costs associated with the treatment of his cows. Percy v Druid & Sons in the tort of private nuisance for the damage caused to his crops: The major difference between David’s claim in the tort of private nuisance and that which may be brought by Percy is the fact that Percy’s land is several miles away from the plant whereas David’s land is immediately adjacent to it. Therefore, even if the Courts presume damage in accordance with the principle espoused in the case of Fay v Prentice (1845)[18], there may be difficulty in proving that the damage in question was reasonably foreseeable. After all, the decision in the case of McKinnon Industries Ltd v Walker [1951][19] was made in regard to damage caused to crops on a neighbouring farm. This assessment will depend upon evidential considerations, such as the likelihood of emissions travelling several miles, the degree of dissipation which would likely have occurred over that distance and how these factors ought to affect the reasonable foreseeability of the kind of damage suffered by Percy. Presuming that the test for foreseeability can be satisfied on the balance of probabilities, then Percy’s claim in this regard will likely be successful and he will be able to recover the losses sustained to his land[20]. Percy v Druid & Sons in the tort of private nuisance for personal injury: Generally, damages for personal injury are not recoverable in the tort of private trespass.
However, in the Hunter case it was held that a claimant can recover for his loss of amenity (of his land only) as a result of the person injury in question, for example if the value of the land has decreased as a result of it being dangerous to occupy. In this case, because the excess emission causing the damage was a one-off ‘unexpected’ event, it will be difficult for Percy to argue that the private nuisance has caused the value of his land to significantly decrease in this way. Percy v Druid & Sons in the tort of negligence for personal injury: So long as it can be shown that emissions of the kind in question are capable of travelling several miles and still causing damage at that distance, then the analysis provided earlier in regard to David’s claim against Druid & Sons in the tort of negligence will be equally applicable to Percy’s claim. If these same requirements are satisfied, then Percy will be entitled to claim damages for his pain suffering and loss of amenity [not only as a result of the attack itself but also in regard to the distress associated with recalling/ remembering that event[21]] and also for his pecuniary losses [as a result of not being able to work for a period of 2 weeks[22]]. If there is any chance that Percy might again have to take time off work, as a direct result of his original attack, then he may also be granted a provisional award[23]. A claim by local residents and businesses whose TV, broadband and mobile phone receptions are interfered with by the general omissions of the Druid & Sons Plant: While it has been held at law that the interference, by a building, of TV, broadband or mobile phone reception cannot amount to a nuisance in the law of tort[24], this does not necessarily apply to interference caused by emissions from a building. After all, such damage may substantially affect the amenity of land; for example, it would be more difficult to sell a house which was unable to receive TV signals at that same price as a similar property which was able to receive TV signals. In this regard, presuming that the degree of interference is significant, then the test of substantiality as handed down in the case of Sedleigh-Denfield v O’Callaghan (1872)[25] would likely be satisfied. However, the defence of proscription would be able to defeat such claims if the plant has been interfering with such signals for a continuous period of twenty years and this interference has never been challenged successfully[26]. Likewise, if Druid & Sons can prove that all such plants necessarily interfere with these signals, then any claims arising could be defeated on the basis of statutory authority[27]. If neither of these defences apply, then it is possible that Druid & Sons could face multiple claims by nearby residents and businesses in the tort of private nuisance. Conclusions: In regard to a potential claim by David in the tort of private nuisance: It is likely that such a claim would be successful and that David could recover a sum of money in damages for the loss of amenity which he suffered as a result of the material damage caused to his land. In regard to a potential claim by David in the tort of negligence: Presuming that David can prove, on the balance of probabilities, that his cows would not have required veterinary attention but for the excess toxic emissions released for the Druid and Son waste plant, then his claim will likely be successful and the company will be liable to meet the costs of the said treatment. In regard to a potential claim by Percy in the tort of private nuisance for the damage caused to his crops: So long as it can be proved that it is capable for emissions to cause damage over a distance of several miles, then it is likely that such a claim would be successful and that Percy could recover a sum of money in damages for the loss of amenity which he suffered as a result of the material damage caused to his land. In regard to a potential claim by Percy in the tort of private nuisance for the personal injuries which he has suffered: Such a claim will not be possible. In regard to a potential claim by Percy in the tort of negligence for the personal injuries which he has suffered: Such a claim would likely succeed so long as it can be proved that Percy would not have suffered his asthma attack but for the excess toxic emissions released for the Druid and Son waste plant and also that this type of damage was a reasonable foreseeable consequence of excess emissions being released. In regard to claims arising from local residents and businesses in regard to the interference caused to their TV, broadband and mobile reception by the plant’s emissions: If the plant has been interfering with these signals for a period of at least twenty years or such interference is a unavoidable consequence of operating such a plant, then such claims would likely fail.
Otherwise, such claims would be likely to succeed. References: St Helens Smelting Company v Tipping (1865) 11 H.L.C. 642 Brenner, J. (1973) Nuisance Law and the Industrial Revolution. 3 Journal of Legal Studies 403. Harlow, C. (2005) Understanding Tort Law. Sweet and Maxwell Publishing. Sturges v. Bridgeman (1879) 11 ChD 852 Miller v Jackson [1977] QB 966 Bliss v Hall (1838) 4 Bing NC 183 Southwark LBC v Mills [2001] 1 AC 1 Fay v Prentice (1845) (1845) 1 CB 828 McKinnon Industries Ltd v Walker [1951] 3 DLR 577 Hunter v Canary Wharf [1997] 2 All ER 426 Winfield and Jolowicz (2002) Winfield and Jolowicz on Tort [W.V.H. Rogers (ed.)]. Sweet and Maxwell Publishing. Allen v Gulf Refining Ltd. [1981] AC 1001. Vancouver General Hospital v McDaniel (1934) 152 LT 56 Barnett v Kensington and Chelsea Hospital Management Committee [1969] 1 QB 428. Rigby v Hewitt (1859) 5 Ex. 240, at 243. Stewart v West African Terminals Ltd [1964] 2 Lloyd’s Rep 371 Sedleigh-Denfield v O’Callaghan (1872) 8 Ch App 8 Phelan v E. Cumbria HA [1991] 2 Med LR 419. Hussain v Lancaster CC [1999] 4 All ER 125 Hulley v Silversprings Bleaching Co [1922] 2 Ch. 281.
Footnotes
[2] As Harlow (2005) p84 writes: “If landowners were entitled to protect the rural uses and amenities of their land through a tort of strict liability, progress, and particularly industrial progress, could be brought to a standstill.”
[4] Lord Chancellor, Lord Westbury in St Helens Smelting Company v Tipping (1865) 11 H.L.C. 642, cited by Harlow (2005) p85
[6] For example, what a resident would reasonably consider a private nuisance in Berkley Square (an highly residential and affluent area in Central London) may not be considered so for residents living in Bermondsey (an highly industrial area outside the centre of London). This was a point made by Lord Justice Thesiger in the case of Sturges v. Bridgeman (1879) 11 ChD 852 at 865. It was this reasoning that was controversially employed by Lord Denning in the case of Miller v Jackson [1977] QB 966, to argue that a claim of private nuisance brought by the neighbouring resident to a village cricket ground should be defeated; namely, that because he chose to move into a property that was adjacent to a cricket ground, he ought reasonably to have expected his property to be damaged by high-flying balls, from time to time. However, because the damage in question was material, the majority of the Court of Appeal felt bound to follow the decision handed down in the case of Bliss v Hall (1838) 4 Bing NC 183, in which it was held that coming to nuisance is no defence in cases which involve material damage, i.e. damage which exists to the same extent regardless of the claimant’s personal preferences and sensitivities. If the type of damage in the Miller case had been non-material discomfort, for example arising from the noise of the balls being struck, then Lord Denning’s reasoning would have been appropriate. For an example of a case where such reasoning was employed successfully to defeat a claim of private nuisance, see Southwark LBC v Mills [2001] 1 AC 1.
[7] Hunter v Canary Wharf [1997] 2 All ER 426
[8] See the analysis provided in footnote 6 in regard to the application of the principle espoused in the case of Bliss v Hall (1838) 4 Bing NC 183.
[9] (1845) 1 CB 828. As Winfield and Jolowicz (2002) p 534 write: “If damage were not presumed, it might be difficult to establish that any one act had caused it.” [10] [1951] 3 DLR 577. [11] See the dictum of Lord Lloyd in the Hunter case [1997] 2 All ER 426, at 442. [12] Allen v Gulf Refining Ltd. [1981] AC 1001. [13] As Winfield and Jolowicz (2002) p 141 note: “An occupier is under a duty… to take steps to remove a hazard on his land which threatens neighbouring property…” [14] Vancouver General Hospital v McDaniel (1934) 152 LT 56, at 57. [15] Barnett v Kensington and Chelsea Hospital Management Committee [1969] 1 QB 428. [16] Rigby v Hewitt (1859) 5 Ex. 240, at 243. [17] 2 Lloyd’s Rep 371, at 375 [18] (1845) 1 CB 828. As Winfield and Jolowicz (2002) p 534 write: “If damage were not presumed, it might be difficult to establish that any one act had caused it.” [19] [1951] 3 DLR 577. [20] We have presumed that Percy has a proprietary interest in his land, as per the decision in the case of Hunter v Canary Wharf [1997] 2 All ER 426. [21] Phelan v E. Cumbria HA [1991] 2 Med LR 419. [22] Winfield and Jolowicz (2002) p769 at 22.23 [23] Ibid. [24] Hussain v Lancaster CC [1999] 4 All ER 125 [25] (1872) 8 Ch App 8 [26] Hulley v Silversprings Bleaching Co [1922] 2 Ch. 281. [27] Allen v Gulf Refining Ltd. [1981] AC 1001
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Political Corruption
- Corruption has become a way of life and nothing can be done to eradicate it[1];
- Post- independence, an abundance of freedom and license bestowed on the people of the democracy caused corruption to gain momentum[2];or that
- Poor people of underdeveloped countries are easy targets of temptation due to their dishonesty while citizens of developed countries are more morally upright[3]; or that
- Corruption is rampant only at the subordinate levels of offices[4]; or that
- Illiterate people are more corrupt than the educated people[5]; or that
- Politicians are mainly responsible for the spread of corruption[6].
Signature: (Oindree Priyadarshini Mukherjee) [1] Ahuja, Ram, ‘Social Problems in India’ 2nd revised Edn., Rawat Publications, 2003, p. 449; https://www.legalservicesindia.com/article/article/is-poverty-a-cause-of-corruption-1613-1.html, visited on 04-04-2014. [2] Ibid. [3] Ibid. [4] Ibid. [5] Ibid. [6] Ibid. [7] Ahuja, Ram, ‘Social Problems in India’ 2nd revised Edn., Rawat Publications, 2003, p. 449; https://www.legalservicesindia.com/article/article/is-poverty-a-cause-of-corruption-1613-1.html, visited on 04-04-2014.
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Inspector of Taxes
Footnotes
[1] [1993] AC 593. [2] Littleboy C., Kerry R., Pepper v Hart, House of Commons Library, SN/PC/392, 22 June 2005, p.3. [3] Ibid, p.3. [4] Steyn J., “Pepper v Hart; A Re-examination”, Oxford Journal of Legal Studies, Vol 21, No 1, 2001, p.66. [5] [2001] 2 AC 349. [6] [2002] 1 WLR 2956.Cite this page
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Police Culture and Corruption
Introduction A string of media investigations during the 1980s uncovered police corruption in Queensland. Persistent media attention and national interest soon led the Acting Premier of Queensland to commission an inquiry into illegal behaviour and related police misconduct. The subsequent inquiry substantiated reports that corruption did exist and that, worryingly, the corruption was wide-spread and high-level. As a consequence of exposing police corruption, society is often left with questions regarding the degree of trust they have with the police, the extent to which corruption runs within the department, and what is being done to prevent corruption from spreading (Lawson, 2011; Loree 2006). A police department with an organisational culture of systemic corruption and questionable ethics, will find itself with officers (exposed to that culture early in their career), soon promoted to leadership roles in which the corruption can bloom and perpetuate. In this essay I will address the role that the police culture plays in the opportunity for corruption to breed, and identify what can be done in an attempt to stamp it out. Organisational Culture and Corruption Organisational culture is the unwritten rules, shared values and beliefs that guide the attitudes and actions of an organisation’s members in their approach to their work and how they interact with each other (Lawson, 2011; State Services Authority, 2013). For police officers, these rules are shaped by the function of policing itself and create a culture of conformity and camaraderie with cultural elements that include: an inflated belief of purpose concerning the role of policing and a passion for exciting work with a slanting towards crime; revelment in macho activities and deeds; the disposition to utilise force; distrust and suspicion; isolation from friends and family; defensive esprit de corps; a cynical attitude towards the motives of others; and an unwillingness to accept the views of individuals who defy the current state of affairs (Lawson, 2011). These cultural elements lend themselves to a sub-culture typified by a code of silence, undisputed devotion and loyalty to other officers, and pessimism regarding the criminal justice system (Loree, 2006, p. 10) and can lead to a closed police society and corruption (Cox, McCamey and Scaramella, 2013). Loree (2006, p.4 citing Sayed and Bruce, 1998) defines police corruption as any illegal activity or misconduct involving the use of occupational power for personal, group, or organizational gain and can occur internally (as bullying or hazing, or offering payments or favours in return for shift changes or holidays) or externally (by receiving free meals or drinks, accepting bribes or kickbacks, or participating in theft or organised crime). When corruption is uncovered it can have consequences for both the officer involved, other officers who have had no part to play in the corruption or for the police department as a whole. For the officer, or officers, involved, the consequences can vary depending on the nature and severity of the corruption or misconduct. At the lesser end of the scale it can include demotion, reduction in pay or limitations in career advancement. At the more serious end of the scale punishment could include dismissal, criminal charges or prison. As severe as some of these consequences are for the individual officers, the effects of corruption on the organisation are even more critical.
The embarrassment resulting from misconduct and corruption can be injurious to the public’s confidence and trust, demoralize sections and officers, or expose the department to litigation. (Fitch, 2011; Loree, 2006, pp.17-19) As a result of judicial inquiry, departmental review or analysis by external researchers, numerous suggestions have been made that police departments can adopt in an attempt to stamp out, or reduce, misconduct and corruption. After the judicial inquiry into police corruption in Queensland during the 1980’s (later becoming known as the Fitzgerald Inquiry), a recommendation was made that the Queensland police should adopt a fundamental doctrine of community policing. The implementation of this recommendation has led to a proactive community policing approach in which crime prevention officers engage with the community through school visits, security and safety audits or homes and business premisies and presentations to various community groups (Lawson, 2011). Equally important to the reduction of corruption and misconduct is the presence of ethical and strong leadership (including organisational management, officers in charge of branches or sections, supervisors of teams, or senior partners). These leaders influence the culture of the organisation and the organisation’s enthusiasm for change. Leaders should take a zero tolerance approach to dishonesty, misconduct and mediocrity. The dispensement of soft punishment for dishonesty or misconduct will be seen as tolerating those behaviours, and the acceptance of mediocrity can produce an environment in which misconduct flourishes. By taking a zero tolerance approach to these issues, and perpetuating a high standard of ethics and integrity, leaders can create an organisational culture that is capable of stifling misconduct. (Barry, 1999, pp.81-85; Cox, McCamey and Scaramella, 2013, p.99; Loree, 2006, p.26; Martin, 2011) To the same degree that leaders should have a zero tolerance approach to misconduct and mediocrity, they should also recognise and reward virtuous conduct and exceptional work.
Loree (2006, citing Mink et al., 2000) notes that when officers feel valued they are satisfied, positive and productive in their behaviours and efforts towards achieving organizational goals. If the only recognition officers receive is chastisement for mistakes, they quickly learn that the reward for keenness and hard work is the danger of being exposed to punishment (Cox, McCamey and Scaramella, 2013, p.99). Protection for whistle-blowers, or those officers who are prepared to speak out against the code of silence, is essential to protect the whistle-blower from litigation, civil and criminal liability, and victimisation (OmbudsmanSA, 2013). The code of silence is grounded in those parts of police culture that often make work teams and sections so effective – loyalty and group acceptance. However, it is those same parts that also make it problematic for police officers to report the corruptive behaviour of others (Loree, 2006, p. 11). It is crucial then, to ensure that those officers brave enough to speak out are protected from being turned into outcasts and rewarded for their ethical stance. Punishment for misconduct and corruption, and reward for exemplary work and virtuous conduct are reactive measures for reducing corruption and changing police culture.
Taking a proactive approach, ethical training regarding the essential part police officers have in the community, and closely tied to the actualities of police work should be both evolving and ongoing. Field tutors and senior partners, particularly, should be educated in ethics so that they are prepared to reinforce the ethics and integrity message that recruits are exposed to during training. When officers are aware of the conduct expected of them, they can be considered responsible for any misconduct or corruption (Barry, 1999, pp.81-85; Loree, 2006, p.22). Of considerable value when attempting to reduce future misconduct is careful recruiting, selection screening and the arduous task of not employing unethical individuals to begin with. Factors which might make an individual at risk of being involved in misconduct or corruption, such as: their associations with criminals; upbringing; or lifestyle choices, should all be considered when screening potential employees. It is vital that departments adequately assess applicants and employ only the most upstanding and honest ones because they potentially have a superior measure of integrity (Loree, 2006; Martin, 2011). Do police officers need to know this? It is important for all police officers to understand the effects of misconduct and corruption for themselves and the department, for them to take the ethical and moral high-ground in coming forth to report such actions, and to understand what can be done to overcome an organisational culture that lends itself to corruption simply being the way things are done. It is important as every police officer can be the catalyst for change, to foster integrity and be a part of an organisation that the community trusts. South Australia Police Strategic Direction and Service Delivery Charter The South Australia Police (SAPOL) Service Delivery Charter (n.d.) clearly sets out the expectation of a culture of service excellence. To achieve this SAPOL need to be seen to be ethical and devoid of corruption.
Through community engagement and proactive community policing, as outlined in their Strategic Direction (2012), SAPOL opens itself up to public scrutiny and offer a level of transparency into the way in which results are achieved. It is essential that the results that are expected by both the community and the department are achieved fairly, professionally and ethically. Conclusion Judicial inquiries, whistle-blowers and investigative journalism have shown that police departments are sometimes not absent of corruption and misconduct. At times this corruption and misconduct is borne from a culture characterised by a code of silence, dedication, loyalty and pessimism. However, the existence of such an organisational culture is not necessarily par for the course. By establishing a moral and ethical culture in a police organisation misconduct and corruption can be controlled and prevented. The steps needed to establish a culture of this type includes: a doctrine of community policing; a zero tolerance approach to dishonesty, misconduct and mediocrity; recognition and reward for virtuous conduct and exceptional work; ethical training; and careful recruiting. The adoption of the above recommendations can assist to embolden leadership, propagate an ethical and morally rich organisational culture and craft police departments which are open and approachable to their communities. Key aspects for presentation Some elements of the community believe that all police are corrupt. Whilst this is at the extreme end of the scale, it would be foolish to assume that a large percentage of citizens don’t suspect that there are still corrupt elements within SAPOL. Corruption or misconduct occurs for many reasons, and sometimes those reasons are because of the police culture an unspoken rule regarding the code of silence (or looking out for your mates because of some misguided sense of loyalty), or turning a blind eye to catch a crook or ensure a successful prosecution (because the courts aren’t capable of doing their job properly). It is important that the department, and the people in it, do all they can to distance themselves from being the root cause of corruption and misconduct due to an unethical organisational culture. SAPOL can achieve this by continuing its policy of community policing, ensuring that it remains open to public scrutiny, maintain strict recruitment processes and provided ongoing training in relation to the behaviour expected from officers. Police officers can help to ensure a culture free from corruption and misconduct by adopting a zero tolerance approach to dishonesty, misconduct and mediocrity, and speaking out about such behaviour without fear of retribution. Word count: 1765 Bibliography Barry, D. (1999).Handling Police Misconduct in and Ethical Way. Master. University of Nevada. Chartered Institute of Personnel and Development, (2012).Leading Culture Change – Employee Engagement and Public Service Transformation.
Policy into Practice. London: Chartered Institute of Personnel and Development. Cox, S., McCamey, W. and Scaramella, G. (2014).Introduction to policing. 1st ed. Thousand Oaks: SAGE Publications. Fitch, B. (2011). Understanding the Psychology of Police Misconduct.The Police Chief. [online] Available at: https://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=2290&issue_id=12011 [Accessed 1 Jun. 2014]. Fleming, J. and Rhodes, R. (2004). It’s situational: the dilemmas of police governance in the 21st century. In:Australasian Political Studies Association Conference. Adelaide. Gilmartin, K. (n.d.).Ethics Based Policing – Undoing Entitlement. [online] Emotionalsurvival.com. Available at: https://emotionalsurvival.com/ethics_based_policing.htm [Accessed 1 Jun. 2014]. Lawson, C. (2011).:: SCAN | journal of media arts culture ::. [online] Scan.net.au. Available at: https://scan.net.au/scan/journal/display.php?journal_id=159 [Accessed 28 May. 2014]. Loree, D. (2006).Corruption in Policing: Causes and Consequences A Review of the Literature.
Ottawa: Canadian Mounted Police. Martin, R. (2011).Police Corruption – An Analytical Look into Police Ethics. Federal Bureau of Investigation. Murray, T. (2000). Police and the challenge of the 21st century: managing change in police organisations.Platypus Magazine. [online] Available at: https://www.afp.gov.au/media-centre/publications/platypus/previous-editions/2000/september-2000/2-21century.aspx [Accessed 28 May. 2014]. OmbudsmanSA, (2013). Whistleblower Protection. Adelaide: OmbudsmanSA. [online] Available at: https://www.ombudsman.sa.gov.au/wp-content/uploads/policy_part_2_2013.pdf [Accessed 28 May. 2014]. South Australia Police, (2012).South Australia Police Strategic Direction 2012-2015. [report] Adelaide: Government of South Australia. South Australia Police, (n.d.).Service Delivery Charter. [report] Adelaide: Government of South Australia.
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Problem Answers on Criminal Procedure and Evidence Law
- (i)
- (ii)
- (iii)
- (iv)
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Prenuptial Marital Agreements
This essay highlights the aspect of prenuptial marital agreements. A pre-nuptial agreement is an contract made by a couple before they get married or enter into a civil partnership, which assorts how they desire their assets to be shared if they should divorce or have their civil partnership dissolved. Such agreements are divided into three categories.
First are the Pre-nuptial agreements which are made before marriage. Second are the post-nuptial agreements which are similar to pre-nuptial agreements but would be prepared after marriage or civil partnership. Lastly, we have the separation agreements and these are made after separation and in expectation of a forthcoming divorce or dissolution. This piece aims to review how the law has adopted changes over the time period. It will analyse the developments and any recommendations that can be pondered over will be discussed.
Pre-nuptial agreements are legally binding in numerous countries including the United States of America and Australia. However, they are not automatically enforceable in courts in England and Wales.
In a landmark ruling in the case of Radmacher v Granatino the Supreme Court said “that courts should give effect to a pre-nuptial agreement that is freely entered into by each party with a full appreciation of its implications, unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.[1] The essay revolves around this case and leading scenarios. A couple may decide between themselves how to split their possessions on divorce. They will often seek legal advice and the awareness that courts will more or less make the same decision if the matter was to be presented in front of them. Their contract will be then approved by court.
When this is not possible such as where dispute between parties arise, an application for ancillary relief will be decided by the court. Financial provision might be granted to either party to the marriage, subject to the facts of the individual case as every case has different circumstances. According to the section 25 of the Matrimonial Causes Act 1973, the court has very extensive discretion concerning the division of assets on divorce however the court must acknowledge all the related circumstances of the case, importance should be given to the welfare of a minor which is of any child of the family who has not reached the age of eighteen. The court must also deliberate whether it is likely to make a “clean break”.[2] Similarly in the case of a civil partnership, The Civil Partnership Act 2004 s.5 (5) sets out related requirements in relation to financial provision applications on dissolution of a civil partnership.[3] The essay will tend to look at the law before the impact of Radmacher v Granatino. The courts have believed what could be labelled as a paternal attitude to the granting of ancillary relief ondivorce.
Inthe past case of Hyman v Hyman(1929) Lord Buckmaster said that “The Wife’s right to maintenance is something she cannot barter away.”[4] Courts have given a lot of importance to its jurisdiction. The impression that the court is the wise one is still mostly leading. Even in the Radmacher case it is specified that “the parties cannot by agreement, oust the jurisdiction of the court.”[5] It was protected in statute first by the Maintenance Agreements act of 1952 and then combined by the Matrimonial Causes Act 1973 which assists the judge to consider the related circumstances of the case. However, there have been amendments to how the appropriate circumstances can be measured.
In the case ofEdgar v Edgar[6]it was acknowledged thatseparation agreementswould generally be given weight. More recently it had been decided that post-nuptial agreements should also be given weight if they were fair and just. This idea was lately supported by the Privy Council inMacleod v Macleod. However, pre-nuptial agreements have been constantly viewed as outside these relevant issues. The requirements for dividing assets are located in second part of the Matrimonial Causes Act 1973.
The court has a very extensive discretion as to what commands to make on an application for ancillary relief. Yet there is a definite pressure between the strategy of hopeful settlement and the outdated view that the state has an important concern in safeguarding that any settlement is just and reasonable considering the welfares of both parties involved.
The revolutionary case on division of marital assets on divorce is White v White in which the House of Lords gave a breakthrough conclusion and said that in great valued asset cases the law has been incorrectly interpreted by the Courts for the previous thirty years. Previously a wife was limited to seeking her fundamental needs such as a house or some maintenance costs labelling to be awarded according to reasonable requirements. Now the approach has taken a different road. There is no difference between the husband and wife and the idea of equality prevails between the breadwinners and the homemakers.
Focusing on the statements of equality, The Courts must deliberate carefully over section 25 of the MCA 1973 feature and fairness must be the main objective of the Court. When reached on a conclusion, the result must be measured against the yardstick of equal division. Failure in these steps can violate the issue of fairness. It’s quite clear that mainly these cases and scenarios are only from high net worth couples. However, the main priority is the care of a minor.
The beginnings concerns the welfare of a minor child of the family as the court’s first attention, secondly the need to accomplish a fair conclusion. This idea was also supported in Miller v Miller[7] and McFarlane v Macfarlane[8]. The idea of equal Davison of assets kept lingering for some time until Radmacher v Granatino. Prenuptial agreements got a real acknowledgment after this case.
InCrossley v Crossley[9] Thorpe LJ stated that, “based on the particular facts of that case, the pre-nuptial agreement was a factor of magnetic importance”. Other factors that should be satisfied in this case were that weight should be given to a PMA only if there Full & frank disclosure of all the assets between parties, the issue of Equality of bargaining power, Each party had independent legal advice regarding the terms and the Terms were fair. Just as each party has a responsibility to make full revelation of all material realities to the court hearing an ancillary relief application, each party has a duty to make full and frank revelation of all material facts to the other party throughout discussions which can result in a consent order. This was explained in the case of Livesey v Livesey[10]. Radmacher was the first time when this matter appeared before the Supreme Court.
There is one thing quite important that if the facts of the case continue to be of vital importance to the decision of the court regarding pre-nuptial agreements then it seems practical that the facts of the Radmacher case must be obviously displayed in order to clarify the decision of the court. The ruling of this case has a great impact on the reform of law which will be discussed further.
The importance of this can be sensed from the statement ofJane Keir, law firm Kingsley Napley LLP, said: “Qualifying nuptial agreements should be enforceable whilst limiting a judge’s discretion over any change to the intended outcome. Never before has English law gone quite so far. We urge parliament not to miss this opportunity to allow couples greater certainty and pre-agreed financial control should their relationship disintegrate.” The Labour Government printed a consultation paper in 1998 called Supporting families[11], which measured the useful steps which can be acquired to support families. The paper recognized that couples might be disheartened from making pre-nuptial agreements because there was no obligation for the courts to take any account of such agreements in determining how to divide property on divorce.
One of the suggestions being deliberated at that period was to see that is it a good idea to make a written pre-nuptial agreement about the distribution of money and property legally binding. Previously, pre-nuptial contracts were unenforceable as being in contradiction of public policy as it was measured that they might weaken the organization of marriage and attempt to restraint the discretion of the courts to grant property on divorce. In F v F, Thorpe J set the very inadequate worth of pre-nuptial agreements: “The rights and responsibilities of those whose financial affairs are regulated by statute cannot be much influenced by contractual terms which were devised for the control and limitation of standards that are intended to be of universal application throughout our society”.[12] It can be seen that recently courts have been ready to assign weight to a pre-nuptial arrangement as one of the applicable conditions to be taken into consideration in working out their discretion under section 25 of the Matrimonial Causes Act 1973. In X v X the judge held that “the fact that the parties have made their own agreement is a ‘very important’ factor in considering what is the just and fair outcome. The amount of importance will vary from case to case”.
He continued: “The court will not lightly permit parties who have made an agreement between themselves to depart from it. The court should be slow to invade the contractual territory, for as a matter of general policy what the parties have themselves agreed should, unless on the face of it or in fact contrary to public policy or subject to some vitiating feature … be upheld by the courts”.[13] In 2003, court supported a pre-nuptial agreement on the foundation that the wife knew that the pre-nuptial contract was correctly counselled as to its terms, and signed it freely without pressure. Hence, it was decided that the contract should be considered by the court as one of the situations of the case under section 25 of the Matrimonial Causes Act 1973 and that admission into the contract established behaviour which it would be unfair to disrespect.[14] However, not in all cases the prenuptial agreements have been successful in getting valued. In Z v Z Moor J said, “This was undoubtedly a case for equal division of assets absent the French agreement.
The issue was whether the marital contract took the case out of ‘sharing’. There was no dispute that the agreement was entered into freely and with full understanding of its implications. No formal advice was given by thetwo notary witnesses and there was no formal disclosure. This did not matter as we knew exactly what the agreement entailed and each party new the financial position of the other”.[15] Later on in 2008, in MacLeod v MacLeod[16], the Privy Council deliberated whether a pre-nuptial agreement was binding. The Privy Council held that it was not up to them to mess with famous rule that pre-nuptial agreements were conflicting to public policy and on these basis they are not binding in the promised sense, and said that the matter was more suitable to law-making body than judicial development but post-nuptial agreements which provided for a upcoming parting could be given weight by the courts.
The law standing in this situation can be weighed according to different scales. The upside of not having a prenuptial agreement is the presence of flexibility.
The court’s jurisdiction can be advantageous and the courts can use their power to maintain fairness and justice. However, this scenario can be the slope down for couples looking for clarity in law. Couples with high net worth can’t secure their belongings due to the ambiguity in law. Looking at this there is a clear pathway needed for safeguard of assets and property upon divorce.
To resolve this issue the law commission have been in the race. The Law Commission began a plan in 2009 to observe the position and enforceability of marital property agreements. In January 2011 it opened a discussion, revising the present law of marital property agreements and discussing choices for improvement. The scheme was stretched in 2012 to cover two additional matters of financial provision rising on divorce or the dissolution of a civil partnership. It was decided with the Ministry of Justice that the possibility of the scheme should be extended to comprise an assessment of two features of financial provision on divorce and the dissolution of a civil partnership namely financial needs and non-matrimonial property.
The aim of the scheme was to bring clarity to the existing law. On 11 January the Law Commission sprung a public talk on marital property agreements, due to the result of Radmacher v. Granatino. The Law Commission was looking for views on the attractiveness of possible choices for reforming the law of prenuptial, postnuptial and separation contracts made by couples before or throughout their marriage or civil partnership that are planned to oversee their financial provisions if the relationship finishes.
Finally in 2014, the final law commission paper came out with detailed recommendations, proposals and strategies to reform the law regarding prenuptial agreements. The main reform proposals are listed below. First and foremost The Family Justice Council should clarify the law relating to “financial needs”. This would safeguard the law and make sure that it is applied reliably by the courts and strengthen judicial repetition. With the guidance people can acknowledge the position of law and their objectives without any legal help.
Secondly, it should explore the likelihood of whether assistance to control of “financial needs” could be planned. And the most important one is to familiarise with the concept of “qualifying nuptial agreements”.
These would be enforceable contracts which would allow couples to make binding provisions for the financial forfeits of divorce or dissolution. However, to make a qualifying nuptial agreement, certain practical precautions would have to be met. The agreements would be enforceable as agreements but would apply only after both partners’ financial needs, and any financial duties towards children, have been satisfied. And they would be binding only if at the period of signing, both parties had revealed material statistics about their financial stateand both gotlegal advice.
Looking at the present law, it is now possible for couples to make pre- and post-nuptial agreements. Legalising prenuptial agreements can bring positive a vibe to the legislature. One of the key benefits of a prenuptial agreement is that it can give certainty on what assets are taken into deliberation in a divorce. These agreements can act as a shield for people of high net worth especially in the case second or more marriages where there are children from the existing marriage. A properly conveyed agreement provides a better grade of certainty.
It gives the couple a level of autonomy and freedom from judicial interference in what should happen to their assets ondivorce. As Resolution vice-chair Jo Edwards expresses her feelings, “Guidance on needs should encourage consistency, dispel myths and manage expectations. This will help anyone going through separation, even if they don’t have access to legal advice and support, or are trying to reach agreements on their own, during a very traumatic time.” [17] In the case of a wealthy partner it can limit their obligation to the less wealthy spouse. A prenuptial agreement can also distinguish assets collected prior to marriage, gifts and legacy as separate to joint wealth.
These agreements also highlight the importance of autonomy as they let people make their own choices. This idea was also supported by Professor Elizabeth Cooke the Law Commissioner for property, family and trust law, said: “Pre- and post-nuptial agreements are becoming more commonplace but the courts will not always follow them and lawyers are therefore not able to give clear advice about their effect. Qualifying nuptial agreements would give couples autonomy and control, and make thefinancialoutcome of separation more predictable”.[18] However, if we consider the preceding statement then it clashes with the main theme of the essay. As it is can be taken from the dissenting judgement of Lady Hale, which states that Pre-nuptial agreements deny the economically weaker spouse an entitlement of the rights they are supposed to get. She also emphasises on the issue of reform of the law.
Deliberating upon the strengths and weaknesses can lead to an easy conclusion that introduction to such agreements can be beneficial for both judiciary and public. Keeping in front of us that legalising prenuptial agreements are the most appropriate thing to do, there is an alternative that can be pondered upon.
This the idea of no fault divorce. In this scenario the fault in relationships which leads to divorce is extinguished. However, if no-fault divorce cancels marriage after the occasion, prenuptial agreements can do can play a good role in undermining it earlier. The idea of marriage is that it’s destined to be a lifetime affair and the clue here is that ‘til death do us part’ and the idea of prenuptial agreements is that they create provision for the thing finishing before it even gets started.
People are setting their resources out of the reach of the spouse in advance. Having considered all possible scenarios here, it can evidently be concluded that legalising the aspect of prenuptial agreements can be a revolutionary change in the history of England. It can provide a clear template for couples to follow and binding rules and regulations can be provided when needed. If anyone wants to enter a contract of such sort, they will know that efficient legal advice is needed which can be helpful when there are guidelines set to be followed. This will allow the lawyers and academics to have a clear transcript to study and advice their clients.
[1] Radmacher v Granatino [2010] UKSC 42; [2010] WLR (D) 260 [2] Matrimonial Causes Act 1925 section 25A [3] Civil Partnership Act 2004 schedule 5, part 5, para 23(2) [4] Hyman v Hyman [5] Radmacher v Granatino [6] Edger v Edger [7] Miller v Miller [8] Macfarlane v Mcfarlane [9] Crossley v Crossley 2007 [10] Livesey v Livesey [11] Supporting families 1998 [12] F v. F (Ancillary Relief: Substantial Assets) [1995] 2 F.L.R. 45 at 66 [13] X v X (FD) [2002] 1 FLR 508 at 537 (Munby J) [14] K v K (Ancillary relief: prenuptial agreement) [2003] 1 FLR 120 (Roger Hayward-Smith QC (sitting as a Deputy High Court Judge) [15] Z v Z [16] Macleod v Macleod [17] https://www.familylawweek.co.uk/site.aspx?i=ed127909 [18] https://www.familylawweek.co.uk/site.aspx?i=ed127909
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Policing the Web
Policing the Web
The police may give off an impression of being one of the figures best set to commission criminal law relating to cybercrime (be that as it may we ought to see, they are by no means, the primary figure so included). Policing has long been a topic of excitement inside criminology, and starting late, premium has stretched out to the examination of private policing, and of policing limits completed by diverse associations at close-by, national and overall levels. Inside criminology, the term "policing" are at present normally used to insinuate a general part or work and not essentially to the activities of cops alone. While not especially lively to get included in policing cybercrime, both the police and other policing business settings regularly now have some staff dedicated to this sector, however apparently cybercrime remains a corner domain in the eyes of various police constrains and officers. The reasons behind this may consolidate that it doesn't adequately fit with officers' contemplations of "true" police work; that it is oftentimes tolerably low – deceivability work; unlucky deficiency of financing; or that it obliges expert specialized skills.[1] Also, institutional legislative issues may control police uptake of innovation; remembering key individuals inside the police may push early gathering of certain new enhancements, this habitually happens against an institutional setting supporting late appropriation.[2] Perhaps the absolute most astounding refinement between policing the web and policing this present in all actuality the virtual world does not appear to fit being viewed in a staggering same course as is standard in this present actuality: it is harder to comfort with your region accepting that you are vague, and may additionally neglect to captivate with police social qualities identifying with watches, police vicinity and captures. This may be to a lesser degree a wrongdoing aversion issue than it first appears to be, regardless, following there is little evidence that honest to goodness – world policing watches have much effect on reducing wrongdoing rates; rather, they may be an indication of 'encouragement policing' or 'security theatre.[3] In diverse parts of policing of cybercrime, then again, there seem, by all accounts, to be various roles the police can all the more normally play. One is surveillance (attained by 'prowling', screening Internet movement, and so forth). An alternate is the investigator part. It is around there that pro police units (alongside expert privately owned businesses) might appear to have the most characteristic case to ability. Undoubtedly, the refinement of the endeavours included may possibly lead master police units dynamically to enrol staff (officers or natives) with particular establishments. As Casey illustrates, extensive mind, and today additionally expert programming, may be needed in getting electronic confirmation.[4] There is currently an extensive assortment of law managing the suitability of this confirmation, however, as with real – world crime, police agents' consciousness of the law of evidence is prone to differ extensively, and investigating officers might regularly decide to look for master lawful direction throughout an examination.[5] Jewkes contends that, such as policing of physical space has asked for a joined – up methodology between people, private areas and the police, in the same path policing of the internet likewise requests for the same. The policing exercises of web today are conveyed by state police as well as by the people (e.g. gathering mediators), Internet service provider figuring and regulatory staff, PC security experts, state security administrations or privately owned businesses (e.g. in fiscal administrations or telecommunication areas).[6] Ultimately, it is worth acknowledging whether this policing is conceivable to automate in the years ahead!Neo-liberalism Approach Towards Internet Governance
Current structures and techniques indicate a noteworthy unlucky deficiency of responsibility to an open approach methodology, supporting overwhelming worldwide methods basic to a fair and responsible IG administration. This makes worldwide IG frail and ineffectual, which is reflected in moderate advancement on issues including multi-lingualisation[7] and expanding the accessibility of internet protocol (IP) number assets. There is likewise basically no activity on other vital territories, for example, value in interconnection costs[8] or worldwide subsidizing exertions for extending the web, around others. In the end, IGF can only be considered as no more than a “talk shop”, which is a multi-stakeholder which can only give policy dialogues and has no power to make binding policy recommendation. Critics contend that if the recommendations made by IGF are made to be binding then it will constraint the internet and will result in more government control. There are certain attempts made to impose greater restriction which are frustrated by status quoists' who fear that there will be arbitrary and greater control of government over internet. The only procedural outcome of WSIS is that the IGF has no fixed funding from the member states of the UN; they rely only on the charity or doles provided by any country or organisations,[9] which ensures influence by any particular country and guarantees its independence and transparency. Neoliberalism has negative suggestions for the impartial dispersion of the web and following socio-investment improvement opportunities. For instance, IG consultations regularly build the objective for full benefit capability of the web to all as an issue of "access" to ICT foundation to be given by organizations, which disregards the goals to engage underestimated gatherings to proper the web and get dynamic co-makers, including its specialized and data construction modelling. Just making advances accessible without comparable ventures in social techniques does not constitute genuine access nor can the needs of groups be held payment by business sector choices on "business feasibility".[10] Investment must be for a methodology of cultural assimilation less of the adjustment of the group to web potential outcomes yet rather of the web to the needs of the group through its own particular pertinent improvement. Such investment, particularly in the connection of creating nations, is not conceivable without a solid part for people in general division and for groups. Markets are intrigued by fleeting benefits than support framework creation. Subsequently, "markets are sufficient to ace vide access" pushes a hegemonistic perspective of the web as an investment infra- structure and overlooks the web's part as a socio-cultural and political hall. The perspective likewise speaks to a perilous misrepresentation of the complex structural issues that avoid underestimated segments from the rising data social order. Issues, for example, the necessity for ace animated open arrangement or legislative part in setting up open foundation and catalyzing group possessed free focuses suffocate in vociferous contentions favoring business headed models to meet "client" needs.[11] Though maximum substance on the internet is non-commercial,[12] present IG dialogue and exercise emerge to implant society in the market.[13] Building the internet as a "public good" is important for advancement and equity perception. The fundamental plan of action of IG is likewise reflected in the ICTs for Development (ICTD) division and national e-governance necessities for sending ICTs for improvement. Current arrangement vacuums both at national and worldwide levels bring about depending on business sectors to store ICT infrastructure and mean the rejection of the individuals who can't pay. Indeed common social order performing artists in the IG coliseum who firmly help negative rights, for example, flexibility of interpretation and protection, offer little backing for positive rights that are distributive in nature and oblige governmental policy regarding minorities in society from the state and different performers. Assuming that then again, ICT is seen as fundamental socio-budgetary framework, the confirmed part of open arrangement and open financing (both from government and group activities) gets to be stronger. Maybe the most dangerous issue identifies with the qualification between "users" and "non-users" in deciding the stakes in IG. The profits harvested through access to data, administrations, correspondence and social connections extremely impediment the individuals who don't have admittance. Consequently, non-users additionally have a stake in the web's fair accessibility and comprise a piece of the web group that ought to have a voice in deciding its heading and outline. Be that as it may, IG has a tendency to valorise the "singular web user" and generally limits its origination of "bottom up procedures" to interest by such clients. Such procedures are further regulated through the production of an assembly that speaks to "unique users" at ICANN - the At-Large Advisory Committee (ALAC), which is commonly neoliberal and refutes the part of the aggregate that is basic in creating connections. The lowest part up ALAC techniques overlook the base 85 per cent for every penny of the world populace that is not right now online!Scope of Internet Governance
It is clear that the present administration introduces discriminating inquiries on the political and socio-budgetary meanings of the rising worldwide correspondences and data structural planning. In addition to, IG issues are actually inalienably fixed to definitional issues of the web. What the web is and who it does or ought to serve include a challenged territory, requiring strategy skeletons that can politically intervene contending cases. Rising goals for an improvement plan in IG prescribes that the IGF must accommodate unique diversions to set forward standards of IG impending from specialized as well as moral and political world sees. Inside the current administration, multi-stakeholderism as a political instrument for open strategy misses the point in placing IG inside worldwide equity precepts Multi- stakeholder interest may take into consideration the legislative issues of distinguishment not redistribution.[14] Furthermore, the tenets of the amusement don't benefit forms for comprehensiveness, particularly Southern civil order engagement. Indeed inside worldwide civil social order, a diligent asymmetry in the democratization of participation[15] implies that consideration of the limitless supporters past singular online clients is a basic issue. Minimized improvement points of view must penetrate the IG space to highlight the specific significance of open ventures in creating nations to manufacture a data social order. Numerous administrations of creating nations, eminently Brazil, see the IGF as a space as discriminating as the World Trade Organization or the World Intellectual Property Organization. Inside a moderately straightforward mapping, two different ways lie ahead. One is of an IG coliseum that is at its heart neoliberal, putting stock in a decreased part for the state restricted to supporting the private segment (through fitting deregulation), with underlying standards of competition and private ventures. In such a space, negligible dialogue around various stakeholders without accord looking for on substantive courses forward will just precede business as usual. The other way looks for certifiable open speculations and arrangements that will permit collective and non-aggressive endeavours in building a "centre" of foundation, gain access to and content (which might for instance be imagined in the making of a rich open space where data is accessible without any protected innovation limitations on use and offering), on the same plane as state funded schools or open health focuses. What's more, it will additionally mean purposeful deliberations to help utilization and allotment of ICTs by bigger populaces, through understanding their developmental needs and permitting those needs to lead engineering configuration and arrangement. This is fundamental assuming that we are to look past the following billion[16] for true comprehensiveness by treating the web and its utilization as an open great. Snappier development advance on issues such- as multi- lingualisation of gtTLDs and determination of the web number depletion[17] is needed. At a worldwide level, there requirements to be distinguishment of centre as a significant supplement to rivalry and open financing as discriminating and key by private money.[1] Y Jewkes and M Yar, ‘Policing Cybercrime’, in T Newburn (ed), Handbook of Policing, 2nd edn. [2] P Manning, The Technology of Policing (New York, New York University Press, 2008). [3] M Innes, ‘Reinventing Tradition? Reassurance, Neighbourhood Security and Policing’ [4] E Casey, Digital Evidence and Computer Crime, 2nd edn (New York, Academic Press, 2004). [5] S Mason, Electronic Evidence: Disclosure, Discovery and Admissibility (London, Butterworths, 2007). [6] M Yar, ‘Computer Crime Control as Industry: Virtual Insecurity and the Market for Private Policing’. [7] The majority of people who are yet to connect to the internet neither speak English nor use the Roman script so forcing ASCII labels on the Domain Name System is an unjust imposition (https://www.cir- cleid.com/posts/intemationalizing the internet/). [8] The lack of internet backbone in many developing countries means that their access to the internet needs to be through developed world infrastruc- ture, adding to their access cost. [9] Funding is in part from ICANN and business entities like VeriSign and Siemens. [10] IT for Change research suggests that revenue models making long run investments in techno- social processes rather than short-term financial sustainability - have succeeded in getting the community to appropriate the infrastructure on a sustainable basis. [11] Note the strong belief of the Global Alliance for Ids and Development on business models and business plans as the solution (ttp://www.un- gaid.org/en/ab0ut/ict) [12]https://www.oecd.org/dataoecd/57/14/38393115. pdf [13] Karl Polanyi, The Great Transformation - The Political and Economic Origins of Our Time (1944) [14] Paula Chakravartty, Who Speaks for the Governed? World. Summit on the Information Soceity, Civil Society and the Limits of 'Multi- stakeholderism', January 21, 2006, Economic & Political Weekly [15] FranA§oise Massit-FollA©a, 'E-Groups, knowledge- building and Polities', French-German Workshop - Berlin, April 27-28, 2007; https://www.voxinter- net.org/spip. php?articleio2&lang= [16] https://intgovforum.org/Rio_Meeting/LGF2-Ac- cess-13NOVo7.txt [17] Each internet computer/device needs to have a unique identifier, currently this is a 4-byte ad- dress used in Internet Protocol version 4 (IPv4).
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EU Law on Air Travel
- Case C-12/11 Denise McDonagh v Ryanair [2013] CJEU
- Case C-544/10 Deutsches Weintor [2012] ECR
- Case C- 275/06 Promusicae [2008] ECR -271
- Cases C-402/07 and C-432/07 Sturgeon and Others [2009] ECR I-10923
- Case C-294/10 Eglitis and Ratnieks [2011] ECR
- Case C-344/04 IATA and ELFAA [2010] ECR
- Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights (OJ 2004 L 46, p. 1).
- Fairhurst.J, Law of the European Union (9th Edn, Pearson 2013)
- Blondi.A, Eeckhout.P, Ripley.S, EU LAW AFTER LISBON (Oxford 2012)
- Foster.N, Blackstone's EU Treaties & Legislation (24th Edn, Oxford 2013-2014)
- Fairhurst.J, Sources of EU Law (including general principles of law and fundamental rights), Law of the European Union (9th Edn, Pearson 2013) pp.70
- Blondi.A, Eeckhout.P, Ripley.S, The Charter of Fundamental Right by David Anderson and Cian C Murphy(Oxford 2012) pp.159
- Foster.N, Charter of Fundamental Right of the European Union Blackstone's EU Treaties & Legislation (24th Edn, Oxford 2013-2014) pp.155
- Geoff Meade, Ryanair loses Icelandic volcano costs legal battle (2012) 1(1-2) The independent <https://www.independent.co.uk/news/business/news/ryanair-loses-icelandic-volcano-costs-legal-battle-7581400.html# > (Accessed on 22 December 2013)
- PA/Huffington Post UK, Ryanair Loses Legal Battle To Avoid Paying 'Passenger Care' To Those Delayed By 2010 Volcano (2012) The Huffington Post <https://www.huffingtonpost.co.uk/2012/03/22/ryanair-losses-legal-battle-volcano-delayed-passengers_n_1372608.html> (Accessed on 20 December 2013)
- Owen Bowcott, Ryanair facing payout over passengers stranded by volcanic ash cloud (2012) theguardian
- Dr Jeremias Prassl, Case C-12/11 Denise McDonagh v Ryanair: Volcanic ash and super extraordinary circumstances (eutopia law, 4 February 2013) <https://eutopialaw.com/2013/02/04/case-c-1211-denise-mcdonagh-v-ryanair-volcanic-ash-and-super-extraordinary-circumstances/ > ( Accessed on 10 January2014)
- Jack Harding, ECJ clarifies the actionability of the Denied Boarding Regulations, (piBLAWG, 31 January 2013)< https://www.piblawg.co.uk/post/2013/01/31/ECJ-clarifies-the-actionability-of-the-Denied-Boarding-Regulations.aspx > ( Accessed on 10 January 2014)
- Stephanie Bodoni, Ryanair Ordered to Reimburse Travelers in Volcano Delay, (Bloomerg News, 31 January 2013)< https://www.bloomberg.com/news/2013-01-31/ryanair-must-pay-traveler-costs-in-volcano-delay-court-says-1-.html > (Accessed on 10 January 2014)
- Rosalind English, Ryanair's right under EU Charter to profit from its customers, (UK Human Rights Blog, 1 February 2013) <https://ukhumanrightsblog.com/2013/02/01/ryanairs-right-under-eu-charter-to-profit-from-its-customers/ > ( Accessed 12 January 2014)
[1] Case C-12/11 Denise McDonagh v Ryanair [2013]CJEU, para 12 [2] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:046:0001:0007:en:PDF (Accessed on 27 December 2013) [3] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:046:0001:0007:en:PDF (Accessed on 27 December 2013) [4] Dublin Metropolitan Distric Court [5] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E267:EN:HTML (Accessed on 16 January 2014) [6] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:046:0001:0007:en:PDF (Accessed on 27 December 2013) [7] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:046:0001:0007:en:PDF (Accessed on 27 December 2013) [8] Case C-12/11 Denise McDonagh v Ryanair [2013]CJEU, para 17 no 3 and 5 [9] https://www.europarl.europa.eu/charter/pdf/text_en.pdf (Accessed on 10 January 2014) [10] Case C-12/11 Denise McDonagh v Ryanair [2013]CJEU para 16 [11] Case C-12/11 Denise McDonagh v Ryanair [2013]CJEU, para 28 and 29 [12] Case C-12/11 Denise McDonagh v Ryanair [2013]CJEU, para 30 [13] Cases C-402/07 and C-432/07 Sturgeon and Others [2009] ECR I-10923,para 44 [14] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:046:0001:0007:en:PDF (Accessed on 27 December 2013) [15] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:046:0001:0007:en:PDF (Accessed on 27 December 2013) [16] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:046:0001:0007:en:PDF (Accessed on 27 December 2013) [17] Case C-12/11 Denise McDonagh v Ryanair [2013]CJEU para 17 no 3 and 5 [18] Case C-12/11 Denise McDonagh v Ryanair [2013]CJEU para 16 [19] Case C-12/11 Denise McDonagh v Ryanair( Opinion of Advocate General) Delivered on 22 March 2012, para 59 [20] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:046:0001:0007:en:PDF (Accessed on 27 December 2013) [21] https://www.europarl.europa.eu/charter/pdf/text_en.pdf (Accessed on 10 January 2014) [22] https://www.europarl.europa.eu/charter/pdf/text_en.pdf (Accessed on 10 January 2014) [23] https://ec.europa.eu/justice/fundamental-rights/charter/ ( Accessed on 10 January 2014) [24] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2007:306:FULL:EN:PDF (Acessed on 10 January 2014) [25] https://www.europarl.europa.eu/charter/pdf/text_en.pdf (Accessed on 10 January 2014) [26] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2007:306:FULL:EN:PDF (Acessed on 10 January 2014) [27] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0013:0045:en:PDF (Accessed on 12 January 2014) [28] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0013:0045:en:PDF (Accessed on 12 January 2014) [29] https://www.europarl.europa.eu/charter/pdf/text_en.pdf (Accessed on 10 January 2014) [30] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:046:0001:0007:en:PDF (Accessed on 27 December 2013) [31] https://www.europarl.europa.eu/charter/pdf/text_en.pdf (Accessed on 10 January 2014) [32] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:046:0001:0007:en:PDF ()Accessed on 27 December 2013) [33] https://www.europarl.europa.eu/charter/pdf/text_en.pdf (Accessed on 10 January 2014) [34] Case C-294/10 Eglitis and Ratnieks [2011] ECR, para 23 and 24 [35] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:046:0001:0007:en:PDF (Accessed on 27 December 2013) [36] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:046:0001:0007:en:PDF (Accessed on 27 December 2013) [37] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:046:0001:0007:en:PDF (Accessed on 27 December 2013) [38] https://www.europarl.europa.eu/charter/pdf/text_en.pdf (Accessed on 10 January 2014) [39] https://www.europarl.europa.eu/charter/pdf/text_en.pdf (Accessed on 10 January 2014) [40] https://www.europarl.europa.eu/charter/pdf/text_en.pdf (Accessed on 10 January 2014) [41] Case C-344/04 IATA and ELFAA [2010] ECR para 78-92 [42] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:046:0001:0007:en:PDF (Accessed on 27 December 2013) [43] https://www.europarl.europa.eu/charter/pdf/text_en.pdf (Accessed on 10 January 2014) [44] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:046:0001:0007:en:PDF ( Accessed on 27 December 2013) [45] https://www.europarl.europa.eu/charter/pdf/text_en.pdf (Accessed on 10 January 2014) [46] https://www.europarl.europa.eu/charter/pdf/text_en.pdf (Accessed on 10 January 2014) [47] Case C-344/04 IATA and ELFAA [2010] ECR‚ para 96 [48] https://www.europarl.europa.eu/charter/pdf/text_en.pdf (Accessed on 10 January 2014) [49] https://www.europarl.europa.eu/charter/pdf/text_en.pdf (Accessed on January 2014) [50] https://www.europarl.europa.eu/charter/pdf/text_en.pdf (Accessed on January 2014) [51] Case C-12/11 Denise McDonagh v Ryanair Ltd,[2013] CJEU,para 59 [52] https://www.europarl.europa.eu/charter/pdf/text_en.pdf (Accessed on 10 January 2014) [53] Case C-544/10 Deutsches Weintor [2012] ECR para 54. [54] https://www.europarl.europa.eu/charter/pdf/text_en.pdf (Accessed on January 2014) [55] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E169:en:NOT (Accessed on 15 January 2014) [56] https://www.europarl.europa.eu/charter/pdf/text_en.pdf ( Accessed on 10 January 2014) [57] Case C- 275/06 Promusicae [2008] ECR -271, para 65 and 66 [58] Case C-544/10 Deutsches Weintor [2012] ECR,para 47 [59] https://www.europarl.europa.eu/charter/pdf/text_en.pdf (Accessed on 10 January 2014
Cite this page
EU Law on Air travel. (2017, Jun 26).
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Power Must Never be Trusted Without a Check
[1]Ram Jawaya V. State of Punjab AIR 1955 S.C. 549 [2]AIR 1951 S.C. 332 [3]Ram Jawaya V. State of Punjab AIR 1955 S.C. 549 [4]People's Union for Civil Liberties v. Union of India1997 1 SCC 301 [5]People's Union for Civil Liberties v. Union of India1997 1 SCC 301
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Prevalence of Gender Bias in Mauritian Legal Profession Law
The Historical Exclusion of Women from the legal profession- A Global Perspective. History is rich in its depictions of old professions, their evolution with time and the way they are shaped presently. Dynamic societies, changing demographics, increased access to education, change in perceptions on gender roles, transformations of the law- all these have revolutionized today's professions.
Now, women are allowed to gain entry into professions that were hitherto barred to them. Studying women's progression is crucial because of the rarity of such studies. This historical examination will create an adequate context for understanding women's professional employment in the past, the present and pave the way for an improved future.
Hence, the previously male-dominated legal profession, and its historical exclusion of women, will be the focal point of this part of the research. In so doing, a case study will be presented on the United States, the United Kingdom and Mauritius.
Noteworthy are the major hurdles faced by women in achieving entry into the legal profession:
First, decades ago, special legislation was needed in many countries to open the doors to women.
Secondly, women had moderate difficulty in obtaining financial and family support to initiate their legal studies.
Third, after acquiring the legal status to plead in court, the fight for employment ensued.
Then, after many years of struggle, personal qualifications started to count more than social status or gender.
Finally the last hurdle was to quash the latent belief that women were not fit for the hardships of legal work.
Case Study: The United States
In the America of the 1800s the legal profession, similarly to medicine and politics, was closed to women. The quote below sheds light on the situation:
"Nature has tempered women as little for the judicial conflicts of the courtroom as for the physical conflicts of the battlefieldA¢â‚¬A¦ OurA¢â‚¬A¦ profession has essentiallyA¢â‚¬A¦ to do with all that is selfish and extortionate, knavish and criminal, coarse and brutal, repulsive and obscene in human life. It would be revolting to all female sense of innocence and the sanctity of their sex."
(Chief Justice Ryan of the Wisconsin Supreme Court, opposing admitting Lavinia Goodell to the bar, 1895, cited in Epstein, 1993, p. 269)
Despite Justice Ryan's vivid language, the reasons for men's resistance to women lawyers "likely has to do with the law's close relationship to power in our society."(Morello, 1986, cited in Martin and Jurik, 2007, p. 107) According to Epstein (1993, p. 13):
members of the legal elite preside over power and property relationships;
they play a leading role in the legislative and regulative bodies that write the law;
they direct the executive agencies responsible for enforcing the law;
they rule the courts that elaborate and apply the law and,
they guide the corporate and financial institutions that constitute the most important property interests.
Exclusion of women from the legal practice was thus successful up until late 19th century. Then, the early women's movement's struggle for civic rights started the mechanism for change- Women were allowed to become legal professionals and they pushed for the professionalization of the legal practice. Schultz and Shaw (2003, p. 13) underline that: "Social status as a base for admittance was discarded, allowing formal qualifications to be the ultimate criterion for entry. This led to an increasing proportion of lawyers with formal education."
The history of the struggle of women in the United States to enter the legal profession was similar to women's struggles in England, other commonwealth nations and Europe.
Case Study: England
Guyard Nedelec (2010) certifies that in the United Kingdom, the first application by a woman to be admitted as a solicitor was in the year 1876. Her application was rejected by the Law Society on the grounds that she was not a "person" within the terms of the Solicitors Act 1843. For Lord Justice Swinfen Eady, in the case of Bebb V. Law Society 1914 1 Ch. 286: "the very fact that women had never been solicitors meant that women could not be solicitors."
Three decades later, lobbies and public debates wrought a significant change in Britain's legislation. In 1919, the Sex Discrimination (Removal) Act was passed, allowing women to be termed as 'persons.' Conductively, England and Wales began to admit a limited number of women around the 1920s.
However, Guyard Nedelec , (2010) reports they were only allowed to practice in restricted areas such as family law, matrimonial and probate work. Decades later, around the 1970s, a number of factors caused women to be admitted to the bar in increasing numbers. First, formal education training became the main requirement for entry into law, rather than apprenticeship, and secondly, structural changes led to a rise in the demand for lawyers. (Schultz and Shaw, 2003, p. 143)
The table below depicts the historical milestones marking the Entry of Women into the Legal Professions
Country
First Woman Admitted to Law Faculties
First Woman Law Student Graduated
First Woman Lawyer
First Woman Judge
First Woman Legal Academic
USA
2nd half of 19th Century
2nd half of 19th Century
Canada
1899 Northwest Territories
1892
Ontario 1895
Quebec 1942
Australia
Victoria 1905
Tasmania 1935
1st Supreme Court Judge 1965, 1st High Court Judge 1975
New Zealand
1893
1897
1st Maori 1982
1st Pacific Islander 1982
1965 1st Law Lecturer
UK
1873
1917
Solicitors:
Scotland 1920
England 1922
Barristers: 1920
Country Court 1960, Court of Appeal 1988
Germany
1900-1909
1912
1922
1965 1st Law Professor
Netherlands
1903
1947
Poland
1915
1925
1929
Norway
1890
Sweden
1897
Finland
1906
1930s
France
1887
1897
1900
1946
1931 1st Law Professor
Italy
1876
1777
1919
1963
Korea
1946
1951
1952
Belgium
1921
Denmark
1919
Ireland
1920
Portugal
1918
Venezuela
1936
Table 1, Source: Schultz and Shaw, 2003, p. xxxiv
With the table above, it can be seen that countries like Canada (Ontario) admitted women to the Bar as early as 1895, whereas in South Korea it took until the year 1952 to find women in the occupation.
The History of Female Lawyers in the Mauritian Legal System
Mauritius obtained its independence in 1968. The Constitution which guarantees equal rights to both genders, made it possible for women to gain entry in the legal practice. All the evidences demonstrate that Mauritian women, unlike their American and English counterparts, did not have to struggle for entry into law practice.
Besides the supreme law of the country, legislative provisions have also been enacted to ensure equal rights of entry to law. Section 4 of the Legal Practitioners Act entails that "any citizen of Mauritius who has been called to the Bar of England and Wales may apply for admission to practice as a barrister."
In this context, the first female lawyer in the Mauritian Legal System, Mrs Pillay, was appointed during the late 1960s, whilst the second, Mrs Anita Kumari Bacha, was admitted in 1971. Mrs Bacha, now retired, accorded this research an interview in order to bring light to the situation of female lawyers at that time. [Refer to Appendix A]
In Mrs Bacha's opinion, no gender discrimination existed when she was practicing law- female members were treated equally. Her promotion as both prosecutor and magistrate substantiates her disagreement on any inequality shrouding the legal system.
However after further probing, she admitted that a male magistrate once qualified her as "indecent" when she appeared to plead in court in her maternity clothes. Moreover, she deplored the way slang terms were allowed to be pronounced in court by counsels. She ascertains that one lawyer in question resorted to the use of crude language to destabilize female counsels and to distress female victims.
She believes that women should be aware of this fact before choosing a career in law. Finally she pointed that there are "softer" areas of the law where women can find themselves at ease. These are family law, adoption law, magistracy and judicial posts.
The situation of female lawyers at the time is therefore a subjective matter. It is difficult to attribute a definitive yes or no to the question of the predominance of gender discrimination.
A study of the number of male and female lawyers could probably give more light to this research.
The table below gives a numerical depiction of the amount of lawyers admitted for practice at the Bar in Mauritius.
Year
Men
Women
Total
% Women
1950-1960
6
0
6
0
1961-1970
6
1
6
16
1971-1980
40
2
42
5
1981-1990
27
6
33
18
1991-1992
16
2
18
11
1992-1993
0
0
0
0
1993-1994
5
0
5
0
1994-1995
15
2
17
11
1995-1996
10
0
10
0
1996-1997
5
5
10
50
1997-1998
8
2
10
20
1998-1999
5
4
9
44
1999-2000
8
4
12
33
2000-2001
11
4
15
26
2001-2002
9
8
17
47
2002-2003
9
5
14
35
2003-2004
13
10
23
43
2004-2005
20
8
28
28
2005-2006
20
13
33
39
2006-2007
15
12
27
44
2007-2008
23
6
29
20
2008-2009
19
18
37
48
2009-2010
17
7
27
25
Total
307
119
426
28%
Table 2, Source: Supreme Court Library as at 17th June 2010
No prescribed pattern can be ascribed to the above data. The amount of women over the years has shown a propensity to change drastically from one year to the other. For instance in 1994-1995 there were 11% of women and the following year 1995-1996 had none. The figures change around the 21st century.
Possible factors that can account for the increase in female professionals are:
The increase in demand for lawyers,
free access to education,
increase in standard of living;
All these factors helped in shaping the demographics of the legal profession. The amount of women has now reached 28% which is more than the amount of women in the Mauritian Parliament of today.
A comparison can be drawn to other countries:-
Country
% Lawyers
USA (2000)
27
Canada (1999)
32
Australia (1994-1995)
24.7
UK (1998)
34
Israel (2000)
34
Germany (2000)
24.6
Netherlands (1993)
30
Poland (1998)
Advocates- 29.5
In-house Advisers- 49.3
France (1999)
45
Brazil (Rio de Janeiro)
37.87
Japan (1991)
5.9
South Korea (1998)
1.9
New Zealand (1999)
29
Finland (2000)
43
Table 3, Source: Schultz and Shaw, 2003, p. xxxvi
The above data displays an average of one quarter to one third women in the world's legal jurisdictions. Though, in Brazil, France and Finland, the share of women lawyers is considerably higher.
South Korea and Japan show the lowest rates, mainly because of the persistent exclusionary strategies preventing women's participation in law.
We will now investigate whether contemporary patterns of inequality exist in the Mauritian legal system. The following themes will be explored:
(B) Does women's greater presence improve the legal institution?
(C) What are gender stereotypes and what are their effects on female law practitioners?
(D) Women lawyers' career prospects in Mauritius:
Private and Public Sector
Glass Ceilings and Income Differentials
Family Responsibility
Sexual Harassment
Senior Counsel Nominations
(e) Recommendations
Does women's greater presence improve the legal institution?
One of the ultimate debates surrounding women in the legal profession has this question as its centerpiece: Do women change the legal profession, or does the legal profession change them? Solimine and Wheatley (1995, cited in Martin, Reynolds and Keith, 2002) argue that:
"Women's participation will not alter the system or affect how justice is done because the system is guided by objective, gender-neutral laws and practices, in accord with the classical model of judging."
Furthermore, many scholars question the claim that the legal institution is substantively and in practice a "male and masculine institution that moots women's presence and influence." (Mackinnon, 1987, cited in Martin, Reynolds and Keith, 2002, p.667)
On the other side of the coin, McKinnon (1987), Pateman (1989) and Kenney (1995), cited in Martin Reynolds and Keith (2002) dispute that:
"Since the system was created by men, based on a concept of citizen as men, with laws written from men's standpoint, the ability to take women's standpoint fully into account is undermined."
Therefore, women's standpoint, as quoted above can be defined as an intuitive ability for affection and an innate rejection of violence.
In a book entitled: 'Gender trials: emotional lives in contemporary law firms', Pierce (1958, p. 103) wrote on a character in Shakespeare's Merchant of Venice. Portia, a female character, disguises herself as a male judge "in an attempt to bring the plea for mercy into the halls of justice." She rejected the adversarial method employed where one party loses and the other wins- arguing instead for a solution where "none of the parties will be harmed."
Carol Gilligan. (1982, p.105) refers to Portia's stance as an illustration of morality based on what she calls 'an ethic of care'. However, Gilligan has stated that she did not present the care perspective as either biologically determined or 'unique to women' (1986, p. 327, cited in Schultz and Shaw, 2002)
Nevertheless, her research has been seen and used to support that there exists a distinctive and natural (Freyer, 1995, p.201, cited in Schultz and Shaw, 2002, p. 193) female approach to moral problemsA¢â‚¬A¦ [Which] even if the product of male oppression may be deployed to disrupt and reform patriarchal structures and discourses.
To endorse the above, Ms Narghis Bundhun, a leading female lawyer in Mauritius, expounded in her interview (Appendix B) that "women lawyers, in my opinion, are better listeners and more ethical in their practice of law."
Thus there are debates that confirm or reject the 'women will change the institution' thesis. The task is to find whether women lawyers' participation will create an "innovation and transformation of the practice of law." (Menkel-Meadow 1989:198-9, cited in Schultz and Shaw, 2002, p. 193)
To find a corollary, extensive research has to be carried out. However cost and time constraints defy the feasibility of such a research in this dissertation- justifying the need to consider another researcher's conclusion:
Carrie Menkel Meadow (1995, p. 34-5) found through her research that women lawyers:
"may be more likely to adopt less confrontational, more meditational approaches to dispute resolutionA¢â‚¬A¦ women will be more sensitive to clients' needs and the interests of those who are in relation to each other, for example clients' families or employeesA¢â‚¬A¦ women employ less hierarchical managerial stylesA¢â‚¬A¦ are more likely to have social justice or altruistic motives in practicing lawA¢â‚¬A¦ and to develop greater integration between their work and family lives."
Gender Stereotypes and their effect on female law practitioners
What is meant by the term Gender Stereotype?
Stereotyping forms part of the human nature. It helps in categorizing the people around us- making life simpler. However it can have "a particularly egregious effect on women." (Cook and Cusack, 2010, p. 1)
Interestingly, women themselves may be socially conditioned to absorb negative stereotypes about themselves and to fulfill the subordinate, passive role they consider appropriate to their status.
For instance in an article by News On Sunday in 2010, it was outlined that 61% women work as clerks or sales persons and only 19% of them work as legislators, professionals and semi-professionals according to the Central Statistics Office.
In its concluding comments on Mauritius, The Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) in 2006 wrote:
"The committee is concerned about the persistence of patriarchal attitudes and stereotypes regarding the roles and responsibilities of women and men in the family and society, where men are still considered the main breadwinners and women's primary responsibility are still household chores."
When societies ignore the existence of such prejudices it may "exacerbate a climate of impunity with respect to violation of women's rights." (Cook and Cusack, 2010, p. 1)
Thus, naming a gender stereotype and identifying its harm is critical to its eradication. Harms of gender stereotypes can take the form of:
Degrading women or diminishing their dignity, and/or
Denying them justified benefits or imposing unjust burdens.
How do gender stereotypes affect women legal practitioners?
In the ABA Commission on Women in the Legal Profession (2001, p. 15), it is said that:
"The characteristics traditionally associated with women are at odds with many characteristics traditionally associated with professional success such as assertiveness, competitiveness and business judgement. Some lawyers and clients still assume that women lack sufficient aptitude for complex financial transactions or sufficient combativeness for major litigation."
Women can as a result be recipients of negative gender constructions. Being too feminine can lead to being qualified as too "soft". Being assertive can be perceived as too "aggressive." Therefore, gender bias can take an omnipresent form in the livelihoods of female lawyers. They experience pressing needs, namely:
The need to socialize and work for long hours,
The need to be as competent as men,
The need to dress like men in sober suits,
The need to face reluctance of some clients to deal with female lawyers,
The need to espouse masculine and feminine styles when convenient, and
The need to face possible criticism when their assertiveness is graded as aggressiveness.
One anonymous female commercial property lawyer, cited in Shultz and Shaw (2003, p. 199), wrote in some detail of the pressure she experienced:
"I think there is still definitely a view that women are not as strong as men. So with colleagues you always have to appear totally confident and positive- wear a smile and be a superhuman professional- and never talk about problems in your private life- that would be weak. And clients often test you too. I am tough, assertive, and meticulous in preparation, to counter all that. You have to be, because of women's reputation for weakness."
Men also tend to confirm women's fears. An interview with a successful Mauritian male senior lawyer [Appendix C] brought the following: "Women in general are not seen working as hard as men, in the field of criminal law, from dawn to dusk in and outside the courtroomA¢â‚¬A¦ thus it is justified for them not to be nominated as Senior Counsels."
Moreover, in Shultz and Shaw a male insolvency practitioner interviewed in 1999 said:
"Clients definitely prefer males in my experienceA¢â‚¬A¦ and I notice too that particular judges when faced with a woman on the other side would nearly always decide against herA¢â‚¬A¦"
Whether judges really write judgements by adhering to pre-conditioned stereotypes is beyond the scope of this part of the study. An analysis of this question will be carried out in the next part.
Ms Gariboo,[Appendix D] a Principal State Attorney in the Attorney General's Office, said in her interview that she has not been part to, nor seen any overt forms of gender discrimination.
However she noticed evident methods of gender stereotyping, where male lawyers would confer tasks upon their female colleagues such as "doing secretarial duties [taking notes during meetings] or making tea." Further, Ms Gariboo condemned the way women lawyers were not allowed to wear traditional clothing such as "churidars" and "sarees"- Thereby fixing the "habitus" of the legal profession.
Her last two observations were:
"no male lawyers ever attended the Gender Policy meetings as ascribed in every ministry department, in order to promote gender equality", and
"Women who are too womanly are not taken seriously and women who are prettier are treated more kindly by male lawyers."
This creates the problem for women of knowing when to hide their difference and when to assert it. Thus as the respondents described above, women find themselves in a tricky situation. Conformity may cause professional alienation when women are deemed too "manly." On the other side, non-conformity brings its individual sanctions of not earning due respect for being too feminine.
Yet, for one woman, the fact that she had to adopt different personas and employ different skills depending on the situation she was in and the people she was with was part of the attraction of the job. She wrote: "especially as a woman, I think, you have to act; sometimes hard and aggressive, sometimes soft. I quite enjoy it in factA¢â‚¬A¦ being attractive and a chameleon." (Schultz and Shaw, 2003, p.200-1)
Consequently, a woman's success in the legal practice may depend on a reflexive ability to change her mannerisms intuitively and quickly, so as to prevent negative gender constructions by the legal environment she evolves in.
Women Lawyers' Career Prospects in Mauritius
Private and Public Sector
The legal profession in Mauritius is divided into two branches, barristers and solicitors. It is not possible to be qualified as both at the same time. Traditionally, barristers are self-employed and have an exclusive right of audience in higher courts. Solicitors on the other hand are instructed by lay clients and may instruct a barrister if required. Barristers and Solicitors per the Legal Practitioners' Amendment Act 2008, work together in Chambers to share administrative costs. Mauritian barristers must be members of the Bar Council while Mauritian solicitors have a legal obligation to form part of the Law Society.
The private sector therefore includes all the barristers and solicitors who are not employed by the government. The public sector on the other hand comprises of The Attorney General's Office, also referred to as the State Law Office or the Parquet. Under its aegis are the offices of the Solicitor General and the offices of the Director of Public Prosecutions.
The Table below shows the amount of men and women lawyers employed in the Public Sector in 2010
Post/Grade
No. of Men Employed
No. of Women Employed
Total
Solicitor General
1
1
DPP
1
1
Parliamentary Counsel
1
1
Deputy Solicitor General
1
1
Assistant Solicitor General
2
2
4
Chief Legal Secretary
1
1
Assistant Parliamentary Counsel
1
1
2
Chief State Attorney
1
1
Principal State Attorney
1
1
2
Principal State Counsel
2
3
5
State Counsel
2
11
13
Senior State Attorney
1
3
4
Curator of Vacant Estates
1
1
State Attorney
1
5
6
Legal Research Officer
3
3
Legal Assistant (Cadre)
1
1
Chief Legal Assistant
1
1
Principal Legal Assistant
2
2
Senior Legal Assistant
1
1
2
Legal Assistant
1
10
11
Total
17
46
63
Table 4, Source: Ministry of Gender Equality, Child Development and Family Welfare, Statistics Office
In the above data, 26% of the legal professionals working in the government are male. The rest, that is, 74% consists of women. The table has included both temporary employees as well as trainees. The propensity of having more female lawyers in the public sector has been explained by Schultz and Shaw.
Women legal practitioners are said to prefer working in softer areas of the law which can bring a flexible timetable and be adapted to their family responsibilities. Furthermore, they are
"more likely to be encouraged to concentrate on matters of lower visibility, profile and financial rewards, whereas men are more inclined (as well as encouraged) to focus on work which offers prestige and better opportunities to develop legal skills and client contact."
When interviewing a male senior barrister [Appendix C], the message that he conveyed was that according to him: "women succeed rarely in criminal law. They should perhaps choose other fields more appropriate to them." Some female lawyers also share this belief and they may be right or wrong.
Glass Ceilings and Income Differentials
Martin and Jurik (2007, p. 145) exhort that "women face a glass ceiling," or a limit on opportunities to climb beyond certain lower steps on the career ladder. Glass Ceilings, or Sticky Floors, as scholars describe, prevent women from reaching higher echelons in a profession.
This invisibility of women at the top legal positions in Mauritius has been deplored by Mrs. Boollel. In her interview [Appendix E] she said: "it is a pain to find women lawyers who have reached to the top in Mauritius."
"The top" in her opinion, would be
To find women barristers or solicitors at the head of law chambers,
To create precedence in case law,
To make a permanent place for oneself in the profession and,
To earning respect from peers, clients, and superiors.
Moreover, Mrs. Boollel ascertained that gender discrimination, glass ceilings and income differentials are much less in the public sector than in the private practice. According to her, discrimination is "crying out" in the private legal sector.
It is true that income, salaries and wages are determined by the Pay Research Bureau as far as the public sector lawyers are concerned. The same cannot be said of the private sector. The income received by lawyers in the private practice has never been studied through research. Moreover it is quite uncertain and largely kept secret. Thus any assumptions in this research would not be possible.
However examples can be drawn from overseas jurisdictions. In Canada, a study made by Hagan (1990, p. 835 cited in Schultz ans Shaw, 2001, p. 62) attempted to find whether any income differentials existed. The following factors were considered:
Specialisation,
Years of experience,
Law school,
Ethnicity, and
Employment context.
Hagan concluded that the gap in earnings remained even after taking into account all the afore-mentioned factors.
In Australia, the table below will shed light on income differentials in the state of New South Wales:
Gross Income
Male %
Female %
Total %
<=$50,000
29.9
48.1
35.7
$50,001- $75,000
22.8
27.0
24.2
$75,001- $100,000
14.0
10.6
12.0
$100,001- $150,000
14.1
6.6
11.9
$150,000+
13.2
4.0
10.6
Unknown
6.0
3.7
5.6
TOTAL
100.0%
100.0%
100.0%
Table 5, Source: Schultz and Shaw, 2001, p. 96
The table proves that Australian women's earnings are considerably lower on average than those of their male counterparts.
This research would like to point out the incidence of lower earnings for women legal professionals in other countries. Without verifiable data, it would be hard to make suppositions.
However the small amount of women in upper echelons of the Mauritian legal practice is a factor contributing to lower earnings for women.
Family Responsibility
The central quest of this sub-part is to investigate whether a practical framework is available for Mauritian lawyers with family responsibility.
Section 5(4) of the Mauritian SDA 2002 clearly defines "Family Responsibility." It is the responsibility of an employee to care for or support: a dependent child, and members of the family in need of care.
Brockman (1992, cited in Schultz and Shaw, 2002, p. 68) on his research of the Canadian legal establishment censured:
the lack of accommodation for family commitments,
the lack of flexibility to work on a part time basis and
the lack of adequate maternity leave arrangements.
The Canadian Bar Association proclaimed its agreement with Brockman's study. It underlined in a 1993 report that:
"Women lawyers with children are discriminated againstA¢â‚¬A¦ and this results in reduced incomes and fewer opportunities for advancement."
Thanks to the Employment Rights Act of 2008, employed female lawyers benefit from leave with or without pay, depending on whether they have worked for more or less than 12 months respectively.
Self-employed female law practitioners, on the other hand, can normally make this decision singularly; but with the knowledge that cutting back on work can result in reduced income and fewer possibilities for advancement.
On the other side, men are usually dispensed from such concerns. This is mainly because women normally assume primary responsibility for family responsibilities. In the News on Sunday article dated 9th April 2010, findings from the central statistics office were echoed:
"Working women spend more time than working men on household chores. A working woman has around 1 hour free time less than a working man everyday and on Sundays the working woman spends an average of 4 hours 30 minutes on household chores and caring for children and 2 hours at work compared to a man spending 2 hours and 3 hours respectively on these activities."
However, men can also be discriminated against as the law provides for a short period of 5 days of paternity leave. (Section 31 Employment Rights Act 08)
This measure both diminishes the importance of fathers in household care and attempts to shape social behavior in order to attribute child care responsibilities principally to women.
Considering the above, it can be purported that more concrete strategies are needed to accommodate work and family demands for legal professionals.
Sexual Harassment
The legislative framework for Sexual Harassment
Sexual Harassment is defined in our Mauritian law as the act of humiliating, offending or intimidating another person by making-
1- An unwelcome sexual advance, or an unwelcome request for a sexual favour to that other person; or
2- Engaging in any other unwelcome conduct of a sexual nature towards that other person.
(The Sex Discrimination Act 2002, section 20)
Further, the Criminal Code (Amendment) Act 1998 added a new section 254(1) to the main Criminal Code of 1838 which provides that any person deemed guilty of sexual harassment is liable to imprisonment "for a term not exceeding 2 years and to a fine not exceeding 100,000 rupees."
Victims of sexual harassment can therefore:
Lodge a case in court and sue on the grounds of breach of section 254(1), or
Reported the case to the Sexual Discrimination Division [SDD] of the National Human Rights Commission. [NHRC]
The SDD employs mediation as a means to settle discrimination and harassment complaints. On August 2006, CEDAW showed its disapproval of the current mediation system:
"The committee is particularly concerned about the weak enforcement of labour laws by the Sex Discrimination Division of the Human Rights Commission, which apparently opts for mediation rather than the referral of cases of non-compliance with the Sex Discrimination Act to the office of the Director of Public Prosecutions."
Mediation is indeed useful when, for example, the SDD persuades an employer to revise his attitudes towards pregnant employees and not terminate their employment. However for cases where the sexual offenders have caused harm to the victim, soft methods such as mediation can hardly be entertained.
Sexual Harassment in the legal environment
Sexual harassment has been documented as a significant obstacle to women's abilities to develop their careers in the practice of law. In interviews conducted in 1994-4, Brockman (cited in Schultz and Shaw p. 67) found that lawyers described the effects of sexual harassment to include" depression, embarrassment, anger, irritation and distress." To counter these negative effects, Canadian legislation created a law precisely for the legal practice, describing sexual harassment as a "professional misconduct."
This research investigated whether cases of sexual harassment have ever been lodged by Mauritian lawyers. It has been observed that the SDD received complaints from several occupations, but none are derived from the legal profession.
This occurrence is worth studying as several factors may influence the lack of complaints. The Australian Human Rights Commission identified these factors in their key findings. In 2008, only 16% of those who have been sexually harassed in the last five years in the workplace formally reported or made a complaint, compared to 32% in 2003.
For those who did not make a complaint in the 2008 national telephone survey:
43% didn't think it was serious enough
15% were fearful of a negative impact on themselves
21% had a lack of faith in the complaint process
29% took care of the problem themselves
It can be surmised that the above four factors greatly influence lawyers in their choice not to report sexual harassment cases in Mauritius.
Senior Counsel Nominations
In the 2008 report of the NHRC, the SDD deplored the fact that: "No woman has yet been made Senior Counsel." This statement was enhanced when two years later when, out of the sixteen senior counsels nominated, none were of the female gender. This research will focus on female barristers as female solicitors have been acknowledged with the title of Senior Attorney.
In her letter, Mrs Pramila Patten, a leading barrister in Mauritius gave an illuminating description of the "Senior Counsel" title:
"The appointment of Senior Counsel provides a clear and public identification of those barristers whose skills, legal experience and personal qualities mark them out as being the best within the legal profession. It is recognition of professional eminence, with those achieving the rank being identified by their peers as leaders in the field of law they practice. For the public, it is a mark of excellence and of a continuing expectation that an individual will consistently perform to the highest standards."
In the newspaper "NewsNow", an article appeared on the 16th of July 2010, explaining the appointment process of Senior Counsels: "Generally, for a legal counsel to receive the accolade of SC, he or she must be recommended by the judges, the Queen's Counsels (QC), the SCs and the Chief Justice who will then
forward the report to the President of the Republic. It is then the prerogative of the president to approve the recommendations."
The amount of women senior counsels in Mauritius being zero, it is now of utmost importance to inspect whether the same happens in the UK for Queen's Counsel nominations.
The table below depicts the number of women nominated as Queens Counsel (QCs) in Britain:
Year
Women QCs
Men QCs
Total
1991
6
67
73
1992
7
62
69
1993
6
64
70
1994
9
68
77
1995
8
63
71
1996
4
62
66
1997
5
63
68
1998
10
50
60
1999
9
60
69
Table 6, Source: Schultz and Shaw, 2003, p. 154
It is often suggested that the low number of women QCs results from the fact that women have only been admitted to the Bar only recently. In Mauritius also, it is judicious to note that normally, barristers who can claim a right to the SC title have up to 10 years or 20 years standing at the Bar in Mauritius. Thus considering the small amount of women who have been nominated [ NB: Refer to Table 2] it is but just not to find any on the list of Senior Counsels.
This supposition however cannot be endorsed by factual evidence. Indeed around 10 to 15 female barristers have around 10 to 20 years standing at the bar of Mauritius. Therefore, the amount of experience criterion can be questioned. In order to avoid considering criteria which are not official, it is crucial now to consider the guidelines published by the Chief Justice. They are:
Standing in the profession, maturity, professionalism in approach;
Credibility, integrity and objectivity in the practice of the profession; Contribution to the development of the law and the legal profession;
Known empathy and assisting in inculcating in the younger members the time-honoured traditions of the noble professions;
Noted interest in and preoccupation with upholding the ethics of respective professions;
Any national or international contribution or exposure relevant to the discipline of the law.
Mrs Urmila Boolllel, in the interview she offered to this research, stressed the fact that she personally knows many female lawyers who fit the criteria cited above. Mrs Pramila Patten, in her open letter to the Chief Justice, mentioned the opacity of the appointment process and derived examples from the system employed in the United Kingdom.
"In UK, the reform of the appointment process was partly inspired by an acknowledgement that women lawyers can be victims of either direct or indirect discrimination such as glass ceiling, confinement to certain areas of law, in turn resulting in the low number of women QCs. In Mauritius, the Sex Discrimination Act 2002A¢â‚¬A¦ as well as the more recently adopted Equal Opportunities Act are not enough to remedy the culture of discrimination experienced by women barristers."
It might therefore be judicious to consider the appointment process in Britain so as to bring more diversity to those who are officially proclaimed as a credit to the legal profession. This will be further examined in the next chapter entitled "Recommendation
Recommendations
The creation of a draft equality code to be circulated amongst all legal practitioners.
The implementation of professional sanctions for gender discrimination and sexual harassment in court or outside.
Efforts must be made to educate the public on the negative impacts of gender stereotypes. In this optic, the Ministry of Education may attempt to remove pictures, examples and illustrations of a stereotypical nature from pre-primary, primary and secondary school syllabus.
The creation of a Gender Balance goal in nomination of lawyers by the Council of Legal Education.
The setting up of an independent body of selection for Senior Counsels and the appointment of meritorious women senior counsels.
Cite this page
Prevalence Of Gender Bias In Mauritian Legal Profession Law. (2017, Jun 26).
Retrieved November 5, 2025 , from
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Problem Answers on Tort Law
- Can the owner, Mary successfully sue Tom for the damage to her car because of negligence? Identify and discuss the essential element of the tort law that she must prove.
- Tom owed them a duty of care: She able to prove that Tom failed to exercise reasonable care while he was towing the car which parked on car park without permission. In which Mary need to prove the Tom own her a duty of care and directly affected by car damage. Also fair that Tom should pay Mary for her car damage.
- Tom breached duty of care: She also need to prove that Tom didn’t meet appropriate standard care while to towing her car, as he was distractive by attractive girls. As his job is to towing the car very carefully while paying attention to each moment cause it might cause car damage and hurt other people.
- Mary need to prove that she suffered as direct consequence of the breach: In which Mary need to prove that there is causal connection between the Tom Negligent and Mary’s plaintiff suffered a loss caused by the breach of duty. The loss thus suffered was not too remote from the tortious act of decedent.
- Mary’s brother was at the back of car asleep. Because of the accident he breaks a rib and bruises large parts of his body. Can Mary’s Brother sue for the personal injuries? Discuss why or why not.
- Tom has already told Mary he has no money to pay for any repair. Is there anything else Mary can do to recover her costs/ compensation? What must she prove?
- There is no contract has been made between Bella and Len as it is part of cross- offer between both parties. Because Bella say ‘OK, I’ll give you the 3,500 ‘at same time as Len says ‘agreed, deal done.’ to John.
- There is no contract been made in between both parties until Andrew pay the money and accept the item as per contract law, but according to the study Warehouse mentioned there advertisement as an invitation for the customer. And they don’t have to mention the number of stock.
- According to the contracts Enforcement Act 1956 it’s not a contract between Ben and William because it simply based or involves promises. But Ben must perform the promises which is equitant to the William performance as he was very helpful in in clearing Ben’s lifestyle block from gorse.
- Nope because it will not be any contract because in contract law it’s important that one party makes an offer and the other party should accepted. According to the case study Alison want to buy the firewood and gave voice mail on Johnny’s phone but as Jonny didn’t received her mail, and we can’t be sure if she accept the offer or not by which offer is not effective until it has been received.
- No Mansion is not contractually bound to pay for the 2000 tins of Brand X paint. As according to contract law no contract exists until an offer so obtained has been accepted. Also the basic rule for a valid contract is that acceptance must be communicated to the offer. And according to the case study Zutalors sent a truck which arrived at the office of Maisnon, carrying 2000 Tins of brand X paint with a letter from Maisnon which stated that “I agree to supply the 2000 tins of brand X paint that you ordered” with price of $75 per Tin. Which shows that the action was taken by Maisnon without the knowledge of the offeree will not usually create any obligation upon the offeree to pay for the work as she had no opportunity to refuse the services.
- Explain if there is a legally binding contract between Ruth and Alexander.
- Explain if there is consideration between the driver of XJ18 and Fred?
- Explain whether Budget Motors Limited is able to enforce the agreement
- Advise Andy whether either or both of these contracts may be avoided.
- Advise if D Can get out of the contract which he done with F.
- Explain whether Lisa can cancel the contract.
- Advise Jake on his legal Position.
- I going to explain through an example in which there are2 different parties called X and Y. In which X put add on trade me in which he mentioned that house is located in best area with nice neighbours. But when Y bought the house after 1 mouth he found out that there is group of young people live next to his neighbours who play loud music every day and break into Y’s car more than 2 times. X is the innocent party which as include into the contract by misrepresentation. Where Y is the one who didn’t take responsibility neighbours and house after selling house.
- According to section 7(3) an innocent party may cancel a contract if he/she proof that had been induced into the contract through misrepresentation. And other party didn’t gave the right information about the property or product while selling to innocent party.
- Yes Strephone expected to get $200,000 because it is reasonable to think that since the Phyllis Construction Ltd knew that the Strephone is in Hotel business, and due to delay the hotel will not make profit from their customer which they usually get.
- Strephone will not get 250000 for the loss of a major international conference because the incident happened under ordinary circumstances. Strephone will get ordinary profits but not for special dyeing contracts that Phyllis construction didn’t know as it’s not a part of contract which singed between both parties.
- No because according to Law the High Tec should give him notice and discuss the reasons about the less payment which was paid by Crown Hotel manager. High Tec can’t sue straight without notify the Manger of crown Hotel and they should warned him to pay rest of the money before the filed case against The Manager.
To be known Lydia Ko (Employee) agree to work for Bing Dai (Programme leader for business) as a full time support staff. Position 
The Employee is begin employed as support staff for Bing Dai who is programme leader for business. Employee need to perform according to instruction given by Bing Dai. Termination of Employment 
The Bing Dai Employer may terminate the trail period which is 90 days by giving notice to the Lydia Kio Employee within the trail Period. The Lydia Kio Employee may terminate the agreement by any cause by giving 2weeks notice in writing to Employer for resignation. Likewise Bing Dai Employer is required to give 2 weeks’ notice to terminate. Terminate for Serious Misconduct 
According to this agreement the Bing Dai Employer have authority to terminate Lydia Ko Employer without giving any notice in writing or oral. List of serious misconduct: - Dishonesty
- Student harassment or harassment reading colleague.
- Continuously failure to follow given instruction
- Poor performance continuously
- Damage any property related to school.
- Action which damage the school and Employer’s reputation.
- Explain by the reference to the appropriate sections in the Sales of Goods Act 1908 why this is a contract of sales of goods.
- Under the sales of goods act 1908 S20 Rule 2 it is clearly mentioned that if the seller is bound to do some changes in the good that he/she going to sell for the purpose of putting that particular goods in deliverable state, then the property/goods still belong to seller until it get approved or notice to the buyer. That’s why it still belong to Lisa.
- Lisa will bear the loss as according to the sales of goods act 1908 First Lisa should deliver the property/good should be in condition what Paul asked for within given time frame and 2nd the property will not belong to buyer until it get approved by buyer.
- The product should meet same as the sample, it not supposed to different from sample.
- The buyer should have opportunity to compare the sample with product he/she is going to buy.
- And last the product should be free from any kind of defect or from any harmful defect.
References
Consumer Affairs New Zealand. (2010, May 21). Minor. Retrieved from www.consumeraffairs.govt.nz: https://www.consumeraffairs.govt.nz/for-consumers/credit-and-debt-1/your-credit-contract/copy_of_minors Consumeraffairs. (2014, July 17). Consumer guarantees for goods. Retrieved from https://www.consumeraffairs.govt.nz/: https://www.consumeraffairs.govt.nz/for-business/compliance/quality-of-your-goods-or-services/goods-sold-by-retailers/consumer-guarantees-for-goods/#sample Ministry Of Justice . (2013). Full List Of Clauses. Retrieved from https://dol.govt.nz/: https://dol.govt.nz/Tools/EmploymentAgreementBuilder/(S(elhpka2si5wgu2y5sysickxk))/Guide/Default.aspx Parlement Concil Office. (2013). Contractual Remedies Act 1979. Retrieved from www.legislation.govt.nz: https://www.legislation.govt.nz/act/public/1979/0011/latest/DLM31590.htmlCite this page
Problem Answers on Tort Law. (2017, Jun 26).
Retrieved November 5, 2025 , from
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Problem Questions and Answers on Company Law
Coursework 1 Adam, Belle, Claire and Dennis have decided to set up a new company which is private, limited by shares.
Section 1
Incorporation Documentation Memorandum of Association (MoA)
- Under the Companies Act 1985[1] the Memorandum of Association[2] sets out a company's constitution and objectives. It's also forms the basis of a company's existence, by regulating external affairs (ss 2-6, CA85)[3].
The MoA was significantly simplified later by the Companies Act 2006[4]. Now, it requires the names of the first subscribers. Also under s 8 (1)(b)[5] it states that the first subscribers must be allotted with at least one share and automatically become members of the company. The new act merely evidences the subscribers` intention to form a new company and thus upon registration, the members need to authenticate it[6]. IN01 Form
- Along with the MoA, an application for registration and a statement of compliance must be delivered to the Companies House; referred to as the IN01 Form.
The CA85 replaced various requirements of the MoA with the Application for Registration[7] (s. 9, CA06)[8], as well as speeding the manual process of the MoA`s content (ss 2 and 10, CA85)[9]. The information required is included in s 9(2), s 9(4), s 9(5) and 9(6) of CA06[10], and briefly this includes the company`s details such as the name, place of registered office, shares, capital, proposed officers and a copy of the company`s AoA. All these need to be delivered to the relevant registrar with the required fee[11]. Part 1
- The company is identified by its name and serial number, hence they both need to be unique. As this is a private company, limited by shares, the correct suffix must be placed at the end; Limited or Ltd (s 59 (1), CA06)[12]. The name on the index can be checked by the WebCheck[13].
- ABCD Limited is not available as it is already on the registrar. s 66(1), CA06[14] clearly states that a company cannot be registered by the same name as another company in the index of company names(s 1099)[15].
- Friends Ltd is free in the registrar. However, it is not advised to use this name as a company FOURFRIENDS LTD is in the registrar's index. Technically, you can use 4 Friends Ltd but under s 67(1), CA06[16], the Secretary of State[17] may judge that this will be passed off as a similar name. In that case, the company will have to change its name within 12 months of registration (s 68(2), CA06)[18], unless FOURFRIENDS LTD has given consent for the proposed name to be used.
- Adam & Company Limited is available on the registrar, but in the index a company under the name ADAM & COMPANY PUBLIC LIMITED COMPANY is registered. Thus, as stated in Part 1 C. II, this is a matter of the SoS to decide upon.
- A Thru D Ltd is available on the registrar.
- Belle & Co Ltd is already on the index and thus it cannot be used. See Part 1 C. I.
- The Red Cross Federation Limited cannot be used. To begin with, this will be interpreted as a misleading name (s 76(1), CA06)[19], as the company has nothing to do with the non-profit Red Cross organisation.
In addition, even if the name is not interpreted as misleading, then under the Geneva Conventions Act 1957[20] it cannot be used under any circumstances. s 6(3)[21] Clearly prohibits anyone to use wording that is associated with the Red Cross Organisation[22].
- Registered office (s 9 (2)(b), CA06[23])
- A company requires a registered office at all times because this is where all communications and notices will be addressed[24]. In addition, under s 86, CA06[25] the registered office is the address stated available for inspection for any register, index or other document; and, that all documents by said company have the address mentioned[26].
- A company that is registered in “England and Wales” cannot have a registered office in Scotland or Northern Ireland. It’s a different jurisdiction and upon registration they will have to state in what jurisdiction the company will be; A5 of the IN01 form (s 15 (2)(e), CA06)[27]. If a registered office is required in Scotland or in Northern Ireland, then a new company will have to be formed under the specific jurisdiction[28].
- Articles of Association
- The Articles of Association[29] are the rules of a company and govern its internal affairs. In other words this is the constitution of the company (s 18, CA06[30]). In addition, it forms a statutory contract between its members and the company (s 33[31]).
The first Option available on A7 of the IN01 form is to obtain model articles, also known as “off the shelf” (The Companies (Model Articles) Regulations 2008[32]). Option 2 again has to do with “off the shelf” articles but, you can add and/or amend provisions. The additional and/or amended provisions must be attached to the IN01 form. As opposed to Options 1 and 2, Option 3 is entirely new articles. For instance, all the provisions are drafted from scratch, known as bespoke articles; a copy of the bespoke must be submitted with the IN01 form[33].
- As they want to amend certain articles, it is advised to use Option 2 and tick the first box (Private limited by shares)
- Section A8 of the IN01 form refers to entrenched articles. Entrenched articles are specified provisions which may be amended if conditions are met. However, they are more restrictive than those which only require a special resolution. Entrenchment may be made by the articles on formation or an amendment which is agreed by all the members of the company. However, the court can still order a company to alter its articles, even though they are entrenched (ss 22, 23, 24, CA06[34]).
Part 2
- Proposed Officers
- A Private company under s 270(1), CA06[35] does not require a company secretary. This however, was not the case before 1st of October 2009, when the CA06 came into force. Under s 283, CA85[36], every company was required to have a secretary.
The functions of a company’s secretary are not defined in the acts. However, a better understanding is made in the case of Re Maidstone Buildings Provisions Ltd[37]. The judgment held that “A secretary is not concerned in the management of the company. Equally, I think he is not concerned in carrying on the business of the company … a person who holds the office of secretary may in some other capacity be concerned in the management of the company`s business[38].”
- A corporate secretary ensures the integrity of the governance framework, and for the efficient administration, for example, ensuring compliance with statutory and regulatory requirements and implementing decisions made by the board. The corporate secretary is not necessarily a human being.
As a company secretary is not defined in the act, then for now they might not need a corporate secretary.
- Yes, everyone can be a director as s 154, CA06[39] states that a private company must have at least one director. Hence, it is possible to have 4 directors.
- A corporate director is a natural person acting as a director of the company.
From the 1st of October 2010 all companies are required to have at least one natural director (s 155, CA06[40]) and his details must be stated in E1 of the IN01 form
- The “Usual Residential Address[41]” it the usual home address of the natural person acting as the director and will not be available to the public record. Whereas, the “Service Address” can be used to receive communications by third parties.
The “Service Address” can technically be the same as the “URA”. However, as the “Service Address” is publicly recorded, it is advised to use a different “URA” so that the information is disclosed from the public. This has replaced the old system where only officers at serious risk could have their residential addresses kept off the public record; and with the old system the registered office could be the same as the “URA”[42]. The necessary information is given in sections D1-D5 of the IN01 Form and it is in accordance with s 165, CA06[43]. Part 3
- Statement of Capital
- As soon as the Companies Act 1985 was in force, a company was required to have a nominal value of shares. This is a fixed amount prescribed by members (s 542, CA06)[44]; in our case, the nominal value is A£1. The Shares can never be issued at a discount (ss 552 and 580, CA06)[45], in other words, lower than their nominal value. The case of Ooregum Gold Mining Co v Roper [1892][46] illustrates this point when it refers to a “Fixed amount” for nominal value.
On the other hand, the share premium is the amount received over and above the face value of the shares (anything over A£1) (s 610, CA06)[47]. Generally speaking there are no restrictions on who holds shares, but the company which cannot be a member of itself (Trevor v Whitworth (1887)[48]. However, there are some exceptions stated in s 659, CA06[49]:
- Treasury shares (s 724, CA06)[50].
- Shares may be acquired for the purpose of capital maintenance.
- Ordinary shares are used to describe the shares of a company with only one class of shares. In the CA06 they are known as “equity shares”. They are the simplest form of shares and generally carry one vote per share, but have no dividend rights attached to them (s 560)[51].
In contrast, Preference shares give the holder preferential rights, usually in dividends and/or return of capital when winding up the company. Preference shares are not defined in the Act, however, they are eligible to receive automatic “Fixed preferential cumulative dividend”. In other words, shareholders with Preference shares are entitled of any dividends that have been omitted in the past, and if more dividends are left then common shareholders receive those rights[52]. The statement of capital must be completed in F1-F5 of the IN01 form. H. Initial Shareholdings.
- When filling in section F5 all they need to be aware of is who has ownership of the company. The ownership is determined by the percentage of issued share capital that each shareholder owns.
Parts 4 and 5 I. They do not need to complete both parts as part 4 is just for companies limited by guarantee (Charities). However, Part 5 needs to be completed by all companies (Statement of compliance). Final Page J. The fee owed to the companies house for registering depends if it is submitted electronically or by paper and if you need the same-day incorporation service. Below is a breakdown of the fees[53]: Electronic (Software)
- Same-day: A£30
- Normal: A£13
Electronic (Web incorporation Service
- Normal: A£15
Paper
- Same-day: A£100
- Normal: A£40
*Fees are subject to periodic change. You should always check the Companies House for current fees[54]. Articles of Association K. Tweaking the Articles
- Yes, referring back to E. II., our clients have chosen to use model articles with certain amendments of provisions. It is permissible to delete the reference to Article 8[55] in 7(1)[56] and Article 8 as long as they attach a copy of the changes before submission.
However, Deleting Article 8 might interfere with Article 15[57] in the future. Thus, it is not advised to delete Article 8.
- Yes, they can change it but it’s irrelevant because Article 11(2)[58] states that “it must never be less than two”. Therefore, this already meets their requirements.
- Yes, they will have to amend/remove Article 17(1)(a)[59].
- Article 26(5) of the model articles ensures that the directors have the authority to refuse anyone to register the transfer of a share. And, under Article 27(2)(a)[60], they may choose to become holder of these shares or have them transferred to another person.
- The default is two qualifying persons at a meeting (s 318 (2), CA06)[61]. In the scenario that they want to set the quorum at 3, then they will have to add that provision to article 38 of the model articles and again ensure that they attach the copy before registration.
- The directors have the authority if they decide to use a company seal or not (Article 49 (1))[62]. In that case, there is no need to remove this provision.
L. After registration the company still has the power to amend any of its AoA (s 21, CA06[63]), which can be done under a special resolution (must be a resolution by the members passed by 75%) (s 283[64]). However, there are some limitations. For example, a clause limiting the company from amending is invalid as seen in the case of Punt v Symonds & Co Ltd[65]. The alterations must be “for the benefit of the company and the members as a whole”[66]. Allen v Gold Reefs Of West Of Africa Ltd[67], in which it was held that alterations could not be inferred with the court unless the amendments were bona fide for the goodwill of the company, illustrates this point. Any amendments of the articles must again be sent to the registrar (s 26(1), CA06) and published (ss 1077/1078, CA06[68]). M. They should include a clause in the AoA about Erin. However, will she be bound by it? Case law suggests that she won’t be bound it. The test is provided in Hickman v Kent or Romney Marsh Sheep-Breeders Association[69], and it stated that “an outsider to whom rights purport to be given by the articles in his capacity as such outsider, whether he is or subsequently becomes a member, cannot sue on those articles treating them as contracts between himself and the company to enforce those rights”[70]. As Erin is Adam`s daughter, she might argue that she is not an outsider. However, in the eyes of the law she is not a member and thus an outsider. She might gain some third party rights under s 6(2) of Contracts (Rights of Third Parties) Act 1999[71] but, this act does not apply to statutory contracts. The only scenario where Erin has rights, is if she creates a separate contract with the company outside the articles. Section 2 – Pre-incorporation Business N. Yes, s 51, CA06[72] allows for pre-incorporation contracts to be entered into.
- Prior to incorporation, the company does not yet exist, and an attempt to act on behalf of the company before the birth certificate[73] has no legal effect as the company may never be formed. A promoter needs to be assigned in order for the company to enter pre-incorporation contracts. The term “promoter” is defined by Lord Cockburn CJ as “one who undertakes to form a company with reference to a given project and to set it going, and who takes the necessary steps to accomplish that purpose”[74].
When signing contracts “for and behalf of” the company, the person authorizing it (promoter) will be usually held liable as seen in the case of Kelner v Baxter (1866-87)[75].
- Promoters may exclude liability and still ensure that the contract is valid through two procedures. The first requires an express term in the pre-incorporated contract to exclude personal liability which may be done under the relevant section[76]. This option terminates the promoter’s personal liability once the company is incorporated. As confirmed in Phonogram Ltd v Lane [1982], where the words “subject to any agreement to the contrary” [77] were analyzed, and interpreted as “unless otherwise agreed”[78]. Hence an exclusion of personal liability must be given[79] .However the promoter must never sign a contract in the name of the company prior to incorporation. As Goddard CJ stated in the case of Newborne v Sensolid Ltd (1954): “as the company was not in existence when the contract was signed there was never a contract” [80].
The Second Procedure is called “Novation”. The newly formed company must create a new contract with the same previous terms. Ratification is not enough as it is now a different contract with the incorporated company instead of the promoter[81]. Section 3 – The Corporate Entity O. It is important to remind ourselves, that this is a company private limited by shares. With that noted, the idea that their personal assets will be protected stems from the landmark case of Salomon v Salomon & Co [1897][82]. The main principle of Salomon derives from the wording “separate Legal Entity”. To form a better understanding, “separate legal entity” means that the company acts as a juristic person in the eyes of the law thus, the individuals involved in the company are not personally liable if something should go wrong[83]. The company as its own legal person is liable for all its debts, not the owners. Therefore, only the company can be sued and not the members; risk only arises to the members if assets were purchased illegally. However, there are exceptions to this principle and this aspect is one of the most ambiguous areas in company law. This is where a court decides to ignore the “separate legal personality”; and it was created by the landmark case through the wording “the veil of incorporation”. There is no general principle on how a judge might decide to lift the corporate veil[84]. However, the corporate veil might be lifted where there is clear abuse of the corporate form. This was illustrated in the case of Jones v Lipman [1962][85] where an unlawful refusal to sell a house was made due to the sham transfer of the house to a company controlled by Lipman[86]. Thus abysmal circumstances might lead to personal liability if decided so by the judges. Bibliography
- Primary sources
- Cases
- Allen v Gold Reefs Of West Of Africa Ltd [1900] 1 Ch 656
- Hickman v Kent or Romney Marsh Sheep-Breeders Association [1915] 1 Ch 88a
- Jones v Lipman[1962] 1 ALL 442 (ER)
- Kelner v Baxter[1866-87] 2 LR 174 (CP)
- Newborne v Sensolid (Great Britain) Ltd[1954] 1 QB 45
- Ooregum Gold Mining Co v Roper [1892] AC 125
- Phonogram Ltd v Lane[1982] QB 938
- Punt v Symonds & Co Ltd [1903] 2 Ch 506
- Re Maidstone Buildings Provisions Ltd [1971] 1 WLR 1085
- Re Northumberland Avenue Hotel Co Ltd[1886] 38 ChD 156
- Salomon v Salomon & Co [1897] 22 AC
- Supplies Ltd v Jerry Creighton Ltd[1951] 1 KB 42
- Trevor v Whitworth (1887) 12 App Cas 409
- Legislation
- Companies (Model Articles) Regulations 2008/3229
- Companies Act 1985
- Companies Act 2006
- Contracts (Rights of Third Parties) Act 1999
- Geneva Conventions Act 1957
- The Companies (Model Articles) Regulations 2008
- Secondary Sources
- Books
- Alexis Mavrikakis, Helen Watson, Christopher Morris and Nick Hancock,CLP Legal Practice Guides: Business and Company Legislation(College of Law Publishing, UK 2014/15)
- Alexis Mavrikakis, Helen Watson, Christopher Morris and Nick Hancock,CLP Legal Practice Guides: Business and Company Legislation(College of Law Publishing, UK 2012/13)
- Boyle and Birds,Company Law(8th, Jprdan Publishing Limited, Bristol 2011)
- Charles Wild and Stuart Weinstein,Company Law(16th, Pearson Education Limited, Edinburgh gate 2013) 74-77
- L.S. Sealy,Cases And Materials In Company Law(Cambridge University Press, Cambridge 1971)
- Sealy and Worthingtons,Cases And Materials In Company Law(10th, Oxford, UK 2013
- Susan McLaughlin,Unlocking Company Law(2nd, Routledge, Oxon 2013)
- Journals
- A Daehnert, 'The minimum capital requirement - an anachronism under conservation: Part 1' [2009] Comp. Law
- G Scanlan, 'The Company Names Adjudicator - A New Regime - New Principles' [2007] Comp. Law, 172
- S Ottolengthi, ''From Peeping behind the Corporate Veil, to Ignoring It Completely' [1990] Modern Law Review
- Tan Cheng-Han, 'Veil piercing - a fresh start' [2015] Journal of Business Law
- Dictionaries
- Woodley, M. G,Osborn's concise law dictionary.(11th, Mick Woodley, London : Sweet & Maxwell/Thomson Reuters 2009)
- Websites
- www.companieshouse.gov.uk
- Ben Pettet, 'Promoters and pre-incorporation contracts' (Oxy.com 2013) <https://law.oxy.co/promoters-and-pre-incorporation-contracts-91620/> accessed
[1] CA85 [2] MoA [3] Companies Act 1985 s 2-6 [4] CA06 [5] Companies Act 2006 s 8(1)(b) [6] Woodley, M. G,Osborn's concise law dictionary.(11th, Mick Woodley, London : Sweet & Maxwell/Thomson Reuters 2009 ) 42 [7] IN01 Form [8] Companies Act 2006 s 9 [9] Companies Act 2006 s 2,10 [10] Companies Act 2006 s 9(2), 9(4), 9(5) and 9(6) [11] Charles Wild and Stuart Weinstein,Company Law(16th, Pearson Education Limited, Edinburgh gate 2013) 74-77 [12] Companies Act 2006 s 59(1) [13] https://wck2.companieshouse.gov.uk/ (WebCheck) [14] Companies Act 2006 s 66(1) [15] Companies Act 2006 s 1099 [16] Companies Act 2006 s 67(1) [17] SoS [18] Companies Act 2006 s 68(2) [19] Companies Act 2006 s 76(1) [20] Geneva Conventions Act 1957 [21] Geneva Conventions Act 1957 s 6(3) [22] G Scanlan, 'The Company Names Adjudicator - A New Regime - New Principles' [2007] Comp. Law, 172 [23] Companies Act 2006 s 9(2)(b) [24] Supplies Ltd v Jerry Creighton Ltd[1951] 1 KB 42 [25] Companies Act 2006 s 86 [26] Charles Wild and Stuart Weinstein,Company Law(16th, Pearson Education Limited, Edinburgh gate 2013) 98 [27] Companies Act 2006 s 15(2)(e) [28] Charles Wild and Stuart Weinstein,Company Law(16th, Pearson Education Limited, Edinburgh gate 2013) 97 [29] AoA [30] Companies Act 2006 s 18 [31] Companies Act 2006 s 33 [32] The Companies (Model Articles) Regulations 2008 [33] Alexis Mavrikakis, Helen Watson, Christopher Morris and Nick Hancock,CLP Legal Practice Guides: Business and Company Legislation(College of Law Publishing, UK 2014/15) 59 [34] Companies Act 2006 s 22,23 and 24 [35] Companies Act 2006 s 270(1) [36] Companies Act 1985 s 283 [37] Re Maidstone Buildings Provisions Ltd [1971] 1 WLR 1085 [38] Susan McLaughlin,Unlocking Company Law(2nd, Routledge, Oxon 2013) 235-236 [39] Companies Act 2006 s 154 [40] Companies Act 2006 s 155 [41] URA [42] Alexis Mavrikakis, Helen Watson, Christopher Morris and Nick Hancock,CLP Legal Practice Guides: Business and Company Legislation(College of Law Publishing, UK 2012/13) 125-126 [43] Companies Act 2006 s 165 [44] Companies Act 2006 s 542 [45] Companies Act 2006 s 552 and 580 [46] Ooregum Gold Mining Co v Roper [1892] AC 125 [47] Companies Act 2006 s 610 [48] Trevor v Whitworth (1887) 12 App Cas 409 [49] Companies Act 2006 s 659 [50] Companies Act 2006 s 724 [51] Companies Act 2006 s 560 [52] Charles Wild and Stuart Weinstein,Company Law(16th, Pearson Education Limited, Edinburgh gate 2013) 157-60 [53] Companies Act 2006 s 1063 [54] https://www.companieshouse.gov.uk/toolsToHelp/ourPrices.shtml [55] Companies (Model Articles) Regulations 2008/3229 Article 8 [56] Companies (Model Articles) Regulations 2008/3229 Article 7(1) [57] Companies (Model Articles) Regulations 2008/3229 Article 15 [58] Companies (Model Articles) Regulations 2008/3229 Article 11(2) [59] Companies (Model Articles) Regulations 2008/3229 Article 17(1)(a) [60] Companies (Model Articles) Regulations 2008/3229 Article 27(2)(a) [61] Companies Act 2006 s 318(2) [62] Companies (Model Articles) Regulations 2008/3229 Article 49(1) [63] Companies Act 2006 s 21 [64] Companies Act 2006 s 283 [65] Punt v Symonds & Co Ltd [1903] 2 Ch 506 [66] Boyle and Birds,Company Law(8th, Jprdan Publishing Limited, Bristol 2011) 123-130 [67] Allen v Gold Reefs Of West Of Africa Ltd [1900] 1 Ch 656 [68] Companies Act 2006 ss 1077/1078 [69] Hickman v Kent or Romney Marsh Sheep-Breeders Association [1915] 1 Ch 88a [70] Sealy and Worthingtons,Cases And Materials In Company Law(10th, Oxford, UK 2013) 254 [71] Contracts (Rights of Third Parties) Act 1999 s 6(2) [72] Companies Act 2006 s 51 [73] s 15, Companies Act 2006 [74] L.S. Sealy,Cases And Materials In Company Law(Cambridge University Press, Cambridge 1971) 19 [75] Kelner v Baxter[1866-87] 2 LR 174 (CP) [76] s 51, Companies Act 2006 [77] Phonogram Ltd v Lane[1982] QB 938 [78] Charles Wild and Stuart Weinstein,Company Law(16th, Pearson Education Limited, Edinburgh gate 2013) 71 [79] S 51, Companies Act 2006 [80] Newborne v Sensolid (Great Britain) Ltd[1954] 1 QB 45 [81] Re Northumberland Avenue Hotel Co Ltd[1886] 38 ChD 156 [82] Salomon v Salomon & Co [1897] 22 AC [83] Susan McLaughlin,Unlocking Company Law(2nd, Routledge, Oxon 2013) 64-68 [84] S Ottolengthi, ''From Peeping behind the Corporate Veil, to Ignoring It Completely' [1990] Modern Law Review 338-350, 338 [85] Jones v Lipman[1962] 1 ALL 442 (ER) [86] Charles Wild and Stuart Weinstein,Company Law(16th, Pearson Education Limited, Edinburgh gate 2013) 35-48
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Postgraduate Studies
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Power of Distribution
In the Estate of Herbert North Summary The answer to the question is that none of the individuals described have authority to act as the situation stands. A representative needs to be appointed before the estate can be administered. Herbert North’s assets will therefore have to be collected in by a court appointed representative and divided among those who are entitled to inherit his assets. It must be impressed upon Mary that Flo, as Herbert’s girlfriend may have the status of a dependant, and this will be discussed throughout the course of the essay. The key actor therefore in this set of circumstances may very well be Flo as if she is able to establish that she had the status of a dependant, she may be entitled to what is known as a statutory payment or other financial provisions, or may be entitled to apply for the status of a spouse, in which case she could in some ways benefit from the estate as if she were married to Herbert. Mary must remember that even if she is appointed as a personal representative, this does not mean that she is going to be the main beneficiary. A personal representative must divide the estate in accordance with succession law, and may be personally liable if this is not done responsibly and in accordance with these rules.
Personal representatives, their powers and responsibilities, the technicalities of how an estate is administered, and what happens if there are more than one personal representative are issues which will be discussed in detail as the essay progresses. However, for the purposes of summarising, it is suffice to say that the situation of Mary and Luke depends very much on that of the other actors in the scenario, and Flo is the person whose situation may have the largest impact upon Mary. The issues which are highlighted in the essay are therefore complex and inter-related and they raise questions about current debates about the current status of the law relating to intestacy and the administration of trusts. These questions will be discussed throughout the course of the essay, but first the question of whether Herbert has made a valid will must be examined. Is the Will of Herbert North Valid? A will is a legally recognised document which can direct that a deceased person’s estate be administered in accordance with their wishes. Herbert spent the last six months of his life in a nursing home and there may be a question over whether he was capable of making a will in these circumstances.
This of course is a matter which will be determined by the construction of the will itself, how sensibly it reads, and by the views of any individuals who may wish to question its validity. In order to make a will which is valid in law, a testator must demonstrate both testamentary capacity and testamentary intention. Testamentary Capacity was defined in the 1870 decision in Banks and Goodfellow (1870)
[1] as being ‘soundness of mind, memory and understanding’ (Bamford et al. (2002) p331). In these circumstances, according to Bamford et al. (2002) p331) a testator must understand a)the nature and effects of his act, b)the extent of what he owns, and c)the moral obligation which he should consider. Under certain circumstances a will may be open to challenge on the grounds of validity if, for example it can be established that there were suspicious circumstances, if the will was not signed properly or if there may have been undue influence.
Given that none of these circumstances appear to have influenced Herbert’s actual will, the writer will assume that it is a valid document. Intestacy Definition, Trusts and the Results of Intestacy The intestacy rules are laid out in the Administration of Estates Act 1925
[2] and apply in order to establish how a deceased person’s property is distributed after their death, where the deceased person has not made a will to dispose of the property (Bamford et al. (2002) p331). Partial Intestacy is where the deceased has only distributed part of his property, and in this case the part which is not distributed will be distributed under the rules of intestacy (Bamford et al. (2002) p331). It must be remembered that intestacy rules only apply to property which can be disposed of by operation of a will, but for the purposes of this question, there is not such property to deal with. The intestacy rules impose what is referred to as a trust which encompasses all of the property, both personal and real which an intestate person has not disposed of by making a will. This trust is an express trust which creates obligations upon and accords certain powers to whoever is nominated as the personal representative (Bamford et al. (2002) p332). Personal Representatives and the Powers and Responsibilities of a Personal Representative A personal representative will have to administer the estate in accordance with the will and/or in accordance with the intestacy rules. A personal representative may be known either as an administrator, or as an executor. Any surviving executor who is named in a will will automatically be appointed as the personal representative, and a personal representative will be entitled to extract a grant of probate in respect of the property of the deceased. In other circumstances an individual or a group of individuals may apply to the court to ask to be appointed as a personal representative.
Geldart (1995, p128) explains the early stages of how a will must be administered: ‘…..the property, whether real or personal, does not go directly to those for whose benefit it is given, nor does property passing on intestacy go directly to those entitled under the rules above stated…[3]’. Where there has been a valid will, a personal representative may be nominated under the rules outlined in Rules 20-22 of the Non-Contentious Probate Rules 1987[4]. These rules provide that in the case where there is no named executor, a ‘residuary legatee’ or ‘any other person entitled to share in the undisposed of residue’ (Bamford et al. (2002) p356) may apply to be a personal representative in the category of an administrator. When a person applies to be an administrator under the later criteria he or she must show the court why they are entitled to act in this role and they must explain why there are no other people from a higher category (for example a ‘residuary legatee’), who are entitled to act. Several people can act as administrators (Bamford et al. (2002) p341), and where there is a dispute over who should act as personal representative, the court decides who is nominated. Therefore in the circumstances of this case Flo, Luke and Mary may be entitled to make an application to be appointed an administrator of the will according them or one of them, the powers associated with personal representatives, however it must be remembered that depending upon the status of Flo, Luke or Mary may not be able to show a court that they are better placed to be appointed as personal representative and therefore extract a grant of probate. When the grant of probate has been obtained, the personal representative has a power of sale, an obligation to discharge the funeral, testamentary and administrations expense and all of the debts owed by the deceased person (Bamford et al. (2002) p384). The personal representative will have powers to discharge the cost of having the emergency repairs done and the nursing home expenses dealt with. Also, any council tax rebate will form part of Herbert’s estate and the discretion to have Herbert buried with his grandparents falls to the personal representative, who must pay any bills in this regard. It probably does not matter that Luke has paid the gas and electric bills, however, the personal representative should check that this has been done honestly and in full and that Luke has not taken any money for himself in discharging these payments. In this investigation the personal representative should look at the bank statements of Herbert North and ask the companies concerned to send final bills with a breakdown of all payments received. The rest of the estate which remains after these expenses are discharged is referred to as the ‘residuary estate’ and this is the estate that the personal representative must distribute.
Therefore it must be impressed upon Mary that the powers of a personal representative are quite limited until a grant of probate is extracted in respect of the estate (Bamford et al. (2002) p339). The early responsibilities and powers of a personal representative are described by Geldart (1995, p128) in the following way: ‘The executor or administrator, whose duties in many ways resemble those of a trustee, must in the first instance discharge the funeral expenses, the cost (including the payment of inheritance tax) of obtaining probate of the will or ‘letters of administration’, and the debts of the deceased. It is only after these claims are discharged that the executor or administrator will transfer the property to those entitled; or, if the property is settled by will and the executor is not himself trustee, to trustees for them. In many cases, as where the persons entitled are not of age, or not yet in existence, or not to be found, an executor or administrator will have to retain the property in his hands for a considerable time, though he may sometimes relieve himself by a payment or transfer into court, and in any case he can obtain the direction of the court when doubts arise as to the proper course which he should take.[5]’. Therefore, Mary should be aware that she is not entitled to act in respect of funeral directions unless she has been appointed as the personal representative. A problem arises therefore that she has already ordered Herbert’s funeral in a somewhat extravagant way. The duty of a personal representative is to discharge only reasonable funeral expenses (Bamford et al. (2002, p384) and therefore if another is appointed personal representative she may be asked to refund some of these monies and to pay for what is not reasonable herself. Equally, if Mary is the personal representative, she has a duty to discharge reasonable expense in the organisation of the funeral. Also, what Mary pays for the funeral, if she has been nominated as personal representative is still open to challenge by other interested parties in the situation and these parties may apply to the court to fix any unreasonable costs, upon Mary personally. Mary should be advised not to take any further action until she knows whether she will be appointed as personal representative, and perhaps she could be advised to try to recover any deposit she has already paid out in ordering Herbert’s funeral or indeed to attempt to cancel arrangements already made if it transpires that she will not be nominated as personal representative.
Again, it needs to be impressed upon Mary that she will not be able to discharge debts for example those owed to Bill’s Bookies, unless she has achieved the status of personal representative. Powers of Distribution According to Bamford et al. (2002, p339) a personal representative must wait until six months after the issue of a grant of probate, before they are entitled to distribute assets under it, otherwise they may be personally (Bamford et al. (2002) p341) liable to satisfy any valid claim to the estate if insufficient assets are left after distribution. Luke is not entitled to distribute the estate unless he has the power to act afforded through the grant of probate and through his nomination as a personal representative. In these circumstances some common sense steps may help Mary to ensure that Luke does not benefit from the residuary estate unlawfully. Given that Mary suspects that Luke may have taken some items of household furniture for himself, she should tell him by notice in writing (sent by recorded delivery) that he is not entitled to distribute the estate without having the powers to act which are vested in personal representatives. Mary could consider making a report to the police and if Luke is clearing the house, this may be unlawful activity. It may also help Mary to try to compile an inventory of all items of household furniture which remain. She can ask the police to assist her in this regard, for the purposes of gaining entry to the house. Alternatively she may consider suing Luke to potentially recover her share of what she suspects he has taken for himself, but this could be difficult if she does not know exactly what has been taken and it may be difficult if she is not personal representative. In all of these circumstances, Mary will be in a better position to act if she has been appointed personal representative.
Mary, or indeed another party charged with the responsibility of personal representative may also be able to ask the court to make an order for Luke to surrender his keys. Is Flo a Dependant? The status of spouse may be applied for where a person can show that they were dependant upon the deceased person in accordance with the criteria laid down in The Inheritance (Provision for Family and Dependants) Act 1975. Geldart (1995) describes the purpose and provisions of this Act: ‘…. (The)…Inheritance (Provision for Family and Dependants) Act 1975, which increases the range of dependants who may apply for provision on death and gives the court wider powers than previously existed so that it can make whatever type of order may be most appropriate in the circumstances…. (A dependant is)…a person who was being wholly or partly maintained by the deceased immediately before his death. To qualify in this…category a dependant need not have been related to the deceased, and thus a mistress would be included. Furthermore, there is no qualifying period during which the applicant must have received maintenance from the deceased…….[6]’. These rules may be of relevance to Herbert’s long term girlfriend, Flo, and if this is the case Mary should be advised that her entitlement to a legacy may be drastically affected by Flo’s status in this regard.
The status of dependant in many ways is akin to that of a married spouse, depending on the circumstances and where a status equivalent to a married spouse is achieved by a dependant this must be the result of a court order. Mary should be advised that under Section Four of these provisions, Flo has only six weeks from the issue of a grant of probate to apply for the status of a dependant, although the court may extend this time period as a matter of discretion (Bamford et al. (2002, p337). If Flo does make an application under this legislation, she must be able to show that she was being maintained by Herbert, either partially or wholly. ‘Maintained’ means that a ‘substantial’ contribution was being made towards the reasonable requirements of that person. Geldart (1995) gives us further detail on what is meant by the idea of being ‘maintained’: ‘’Maintained’ means that the deceased was making a substantial contribution in money or money’s worth towards the reasonable needs of the applicant, and he did not receive full valuable consideration for this: thus food and shelter are included in the definition. The court may attach to its grant such conditions as it sees fit.
The maintenance ordered may be in the form of a lump sum, by way of periodical payments of income, or by transfer or settlement of specific property, or the variation of a settlement. Such payments to a spouse will normally end if he or she remarries, but……provisions….excluding a child from further benefit on attaining the age of majority or on marriage have been repealed by the 1975 Act. The court must take into consideration the nature of the testator’s property, the pecuniary position of the dependant, his or her conduct to the testator, and any other relevant circumstance, and the testator’s reasons for the dispositions made by him in his will…[7]’. As Herbert’s house is his main asset Flo may be entitled to an absolute interest in her share of it, if she achieves the status of a dependant under these provisions. She may also be entitled to a statutory legacy which is currently £200000 and is tax free. However, under the rules of intestacy, a spouse is defined as a person to whom the spouse was married to when he or she died. Therefore, if there is no spouse or person to whom the Inheritance Act 1975 applies to, then issue of the deceased will be the beneficiaries, and in this case, the issue are Luke and Mary, who are entitled to take the undisposed property of Herbert under the intestacy rules, in the event of a failure by Flo to establish that she is a dependant. The Squatter Squatting is not regarded as a criminal offense.
However, it must be explained to Mary that she must not try to enter the property by damaging windows or doors. Equally, a squatter who damages windows or doors is liable to be arrested. Mary or the personal representative may be entitled to obtain a court order to evict the squatter. The personal representative should make immediate efforts to have this squatter removed, bearing in mind that it is illegal to force entry in some circumstances and that it is illegal to intimidate the squatter through the use or the threat of force. Luke may also be a squatter if he moves in immediately and wishes to occupy the property rent free and if he does so he is liable to be evicted also. Inheritance Tax Mary is right to suspect that the assets may attract inheritance tax, although a recent change to the Inheritance tax legislation operates favourably in this regard as the lower threshold for Inheritance tax has just been increased to £285,000, as of April 2006. This newspaper extract shows the full nature of the change to the legislation: ‘Inheritance tax is currently charged at 40 per cent of the value of all assets passed on above the £275,000 threshold, although this is set to increase to £285,000 in April…[8]’. However, only the person entitled to inherit should be concerned with Inheritance tax and it is not clear yet that Mary will be entitled to inherit Herbert’s assets. Gifts Any gifts given by Herbert may be taxable as this extract from the Mail on Sunday indicates: ‘Gifts given within seven years of death are taxable, except those to a husband or wife….and gifts to charities are exempt as are [pounds sterling] 250 cash handouts, certain cash wedding gifts and payments into a life policy..[9]’. The responsibility to open an account with the Inland Revenue falls to the personal representative who should ensure that all tax is paid properly. If there was an undue influence involved in the giving of this gift or if Herbert was not of sound mind at the time, as might have been the case in the case of the gift to the Matron, a court may order the money or jewelry to be returned.
However, it may be difficult to prove the circumstances surrounding the bequest of these gifts and accordingly, the person nominated as personal representative should use their discretion to see if it is worthwhile to pursue this avenue. Conclusion These are the issues that Mary should be made aware of by the solicitor. She must understand both the limitations of her power at each stage of the process and the extent of any power a nomination as personal representative may lead to. She must understand that she may not be entitled to benefit in the way that she might like and must understand the entitlements that Flo may secure. Bibliography Books Geldart, W. (1995) Introduction to English Law. Publisher: Oxford University Press. Place of Publication: Oxford. Publication Year: 1995. Bamford, K., Bramley, S., Fraser, J., Halberstadt, R., Morgan, A., Norris, M., Pooley, S. and Riddett, R. (2001-2002) The College of Law: Legal Practice Course, Pervasive and Core Topics. Publisher: Jordans.
Place of Publication: Bristol. Publication Year: 2001-2002. Articles Anonymous (March 2006) Budget 2006 – Inheritance Tax Hopes Dashed.
Available at: << https://www.myfinances.co.uk/news/economy/the-budget-and-pre-budget/budget-2006-inheritance-tax-hopes-dashed-$340734.htm >>. Anonymous (1996) Avoid the Grief Bequeathed Without a Will. The Mail on Sunday. Publication Date: October 13, 1996. p15. 1
Footnotes
5)
[1] LR 5 QB 549
[2] (AEA 1925)
[3] p128. Geldart, W. (1995) Introduction to English Law. Publisher: Oxford University Press. Place of Publication: Oxford. Publication Year: 1995.
[4] (NCPR 1987)
[5] p128. Geldart, W. (1995) Introduction to English Law. Publisher: Oxford University Press.
Place of Publication: Oxford. Publication Year: 1995.
[6] p122. Geldart, W. (1995) Introduction to English Law. Publisher: Oxford University Press. Place of Publication: Oxford. Publication Year: 1995.
[7] p122. Geldart, W. (1995) Introduction to English Law. Publisher: Oxford University Press. Place of Publication: Oxford.
Publication Year: 1995.
[8] Anonymous (March 2006) Budget 2006 – Inheritance Tax Hopes Dashed Available at: << https://www.myfinances.co.uk/news/economy/the-budget-and-pre-budget/budget-2006-inheritance-tax-hopes-dashed-$340734.htm >>.
[9] p1. Anonymous. Avoid the Grief Bequeathed Without a Will.
The Mail on Sunday. Publication Date: October 13, 1996. p15.
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Problem Questions on Company Law
Question a:
A company that formed will create a separate legal entity to conducting business which is protected under the Companies Act 1993 (Companies Office, 2014). When a company is formed, the company will contained some basic elements such as the company’s name which is reserved by Registrar of Companies, at least one share, one shareholder and a director, a registered office that used to keep the records of the company, an address that used to serve the legal documents of the company and the address for communication. All the companies that formed usually are categorized as the limited liability companies and the unlimited liability companies are rare. On the other hand, a partnership is a legal relationship formed by the agreement between two or more individuals to conducting business as the co-owners (Murray, 2015).
There are three types of partnership which are the general partnership, limited partnership and limited liability partnership. General partnership is created with the general partners only that are involved in day-to-day operations of the business and assuming the personal responsibility for the liabilities of the partnership. Limited partnership is created with general partners and limited partners. For the limited partnership, the general partners are involved in the day-to-day operation of the business and also responsible to bear liabilities for the business while the limited partners are involved in the investment of the business but not involved in the day-to-day operations, so the limited partners have limited liability within the partnership. Limited liability partnership is the combinations of the characteristics of partnership and corporations where all the partners are protected from the negligence of the other partners.
Differences between Corporation and Partnership The first difference between a corporation and a partnership is the structure. A company is an independent legal entity that owned by the shareholders who are responsible to determine the way of the operation of the company and decides who should manage the company. It is also a person separate from its members and its directors. Meanwhile, a partnership is not the independent legal entity which involved two or more individuals who share the ownership of a business by sharing all the management duties, expenses, liability and profits together. Furthermore, another difference between company and partnership is the liability. A company does not held individual liable for the company’s debt or legal obligations since the company is classified as a separate entity because the company itself is responsible for all debts and legal fees.
This is to protect the shareholders from the risk of losing personal assets but only held liable for the actual investment of the shareholders in the company. Meanwhile, the general partners of a partnership held liable for all company’s debts and legal responsible where the personal assets of the general partners may be used to pay the company’s debts. There is the partnership agreement that involved in a partnership which stating the percentage of the profit and loss in the business that should be shared by each of the partners. Meanwhile, the number of members is also one of the differences between a company and a partnership. Corporation is established by high number of people which can reached more than twenty people in a company whereas partnership is formed between two until twenty people only. There is no maximum of number of members for a company except the private company that only can reach maximum fifty people as the members. A company involved higher paperwork with the local government and higher number of people within the board of directors in decision making for the business while the decision making are made by the partners that involved in the business for a partnership. Besides that, the difference between the company and partnership is the registration.
The formation of company is required to be registered with the Registry of Companies based on the Companies Act 1965. The creation of a company is expensive and complicated which involved higher administrative costs, complex tax and legal requirements. On the other hand, the formation of the partnership is required to be registered according to the Registration of Businesses Act 1956. For the creation of a partnership, it is less costly and also easier since there is less complex administration works as compared to the company. Moreover, the legal difference between a company and a partnership is also includes the constitution. The constitution of a company must be formed in writing by the Memorandum and Articles of Association. The formation of a company must file the articles of incorporation and obtain state and local licences and permits. Normally, the company will hire lawyer for help in the process of the formation of the company. By contrast, a partnership can be formed in the ways of either orally or in writing. The formation of partnership must register the business with the state and also obtain the local or state business licences and permits in order to carry on the business. Other than that, the legal difference of a company and a partnership is dissolution. The characteristic of perpetual existence of a company making the company can still continue to operate even though there is occurrence of the death or the insolvency of the members within the company. However, a company can be dissolved by liquidation and winding up. On the other hand, a partnership will be dissolved informally such as when there is death or retirement of the partners or agreement among the partners. In conclude, Mr. Azwan and Mr. Zuhri should consider setting up a partnership if the number of people that involved in the business is less than twenty people (Tasmanian Government, 2014). There are some advantages to create a partnership. The formation of a partnership is much simpler than a corporation since the structure of a partnership is smaller. The simpler structure of a partnership will also eventually lower the start-up cost of the partnership. Other than that, formation of the partnership can bring in more capital for the business. When there are more than two people in a partnership, the borrowing capacity for the purpose of investing in the business will become greater. Moreover, the advantages of the creation of a partnership also include the business affairs of the partners are private and protected since there is limited external regulation on the business of a partnership. Therefore, the formation of a partnership is the best choice for Mr. Azwan and Mr. Zuhri.
Question b:
Introduction The Memorandum of Association determines the basic parts of the structure of the company which states the objects formed within the company. Normally, Memorandum of Association is required and needed in the companies because it provides the information to others such as shareholders and investors about the company. The regulations for management of the company will be set in the Articles of Association and the regulations in the Companies Act 1965 may be used (Pheng, 2005). The Memorandum of the company may be modified according to the Companies Act 1965 unless the Memorandum itself prohibits the changing and deleting of the provision that set in the Memorandum. In fact, there is a particular class of members have the authority to inhibit the changing and deleting of the provision of the Memorandum. Meanwhile, the Articles can be altered by a special resolution based on the Companies Act 1965 and conditions in the Memorandum. After registered, the Memorandum and Articles are a contract that used to form a bond between the members and the company. Articles of Association represent the contract that involved the matters between the company and its shareholders. The object clause of the company is stated in the Memorandum of Association and the objective of the object clause is to limit the activities that can be undertaken by the company. The act of the company will be considered as ultra vires if the act is exceeding the limits of the object clause. Ultra vires doctrine is defined as an act that beyond the powers of the company.
The act that is ultra vires is considered void and cannot be approved although all of the members of the company wish to approve the act. The situation of ultra vires doctrine occurred when the directors of the company exceeded their power to carry out certain activities that should not be undertaken by the company. Ultra vires doctrine is created to protect the investors and creditors of the company by helping the investors to know the activities that their money is invested. Besides that, this doctrine is also developed to ensure the creditors that the funds of the company will not be wasted in the unauthorized activities so that the creditors can guarantee the payment from the company by avoiding the company went out of the circumstances of the business. This doctrine can prevents the company to allocate the money of the investors for other purposes that did not stated in the object clause of its Memorandum. Not only that, ultra vires doctrine is also used to guarantee the correct application of the company’s assets in order to avoid the problem of liquidation of the company besides protecting the creditors. This is because the doctrine can check the activities that are carry out by the directors in order to let the directors know the power or authority that they should act within the company so that they will not acting without authority. In order to identify whether the action is ultra vires or not, there are two aspects that need to be determined.
The two aspects are the main purpose and the special powers that are affecting that purpose. When the action is fulfilled both of the requirements, then the act need to be determined whether is incidental or consequential (Law Teacher, 2013). Referring to the reference case of Attorney General v. Mersey Railway Co. [1907], a company was incorporated for running on a hotel business (Law Teacher, 2013). The company has entered into a contract with the third party for purchasing furniture, hiring servants for maintaining omnibus. The purpose of the company was actually to run a hotel business but the object clause of the Memorandum of the company did not mention that they can purchase furniture or hire servants. This action was challenged and this case was brought to the court to see whether this act of the directors is considered as ultra vires. Based on the reference case, the court held that a company that incorporated for carrying on a hotel could reasonably purchase furniture, hire servants and maintain omnibus to attract more intending customers to the hotel to enjoy a full range of facilities that are provided by the hotel. This action is reasonably necessary to achieve the objective of the company to provide the best service to the customers in order to maximise the profit gained in the company.
List of Referencing
Companies Office. (2014) What is a company? [online] 26th September 2014 Available at: https://www.business.govt.nz/companies/learn-about/companies/what-is-a-company [Accessed 6th January 2015] Kunz, M. (2015) 5 Major Differences Between a Corporation and a Partnership. [online] Available through: https://smallbusiness.chron.com/5-major-differences-between-corporation-partnership-18830.html [Accessed 17th January 2015] Law Teacher. (2013) The Doctrine of Ultra Vires. [online] Available at: https://www.lawteacher.net/free-law-essays/company-law/the-doctrine-of-ultra-vires-company-law-essay.php [Accessed 21st January 2015] Murray, J. (2015) What is a Business Partnership? [online] Available at: https://biztaxlaw.about.com/od/glossaryp/g/partnership.htm [Accessed 6th January 2015] Peng, L. M. (2005) General Principles of Malaysian Law. 5th ed. Shah Alam: Oxford Fajar Sdn. Bhd. Tasmanian Government. (2014) Partnership- advantages and disadvantages. [online] 9th September 2014 Available at: https://www.business.tas.gov.au/starting-a-business/starting-a-business-from-scratch/choosing-a-business-structure-intro/partnership-advantages-and-disadvantages [Accessed 3rd February 2015]
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Problem Question on the Registration of Pharmacists in Malaysia
- Ms Rose Mah is a recent graduate from an approved pharmacy school in Malaysia. She decides that she wants to work locally as a registered pharmacist. Describe the process and requirements for registration as a pharmacist in Malaysia.
- After gaining five years of experience, Rose decides that it is time for a change in scenery and would like to practice in Australia. Discuss the process she requires to register in Australia for the first time as well as maintaining her active Australian pharmacist registration thereafter.
- Legal Research Board. Malaysian Laws on Poisons and Sale of Drugs. Selangor Darul Ehsan, Malaysia: International Law Book Services; 2014. Registration of Pharmacists Regulations 2004; p. 275-294.
- Legal Research Board. Malaysian Laws on Poisons and Sale of Drugs. Selangor Darul Ehsan, Malaysia: International Law Book Services; 2014. Registration of Pharmacists Act 1951 (Act 371); p. 245-273.
- Australian Pharmacy Council. Information for Stream A Candidates [Internet]. Australia: Australia Pharmacy Council; Date Unknown [cited 2015 Apr 25]. Available from: https://pharmacycouncil.org.au/content/index.php?id=10
- Australian Pharmacy Council. Examinations Fee Schedule [Internet]. Australia: Australia Pharmacy Council; 2013 Jul 1 [cited 2015 Apr 25]. Available from: https://pharmacycouncil.org.au/content/index.php?id=15
- Australian Pharmacy Council. Information Handbook for Stream A Candidates [Internet]. Australia: Australian Pharmacy Council Ltd; 2015 [cited 2015 Apr 25]. 18 p. Available from: https://pharmacycouncil.org.au/content/assets/files/Examination Guides/Candidate's Information Handbook - Stream A - 3.2.15.pdf
- Australian Pharmacy Council. Skills Recognition and Examination Process Frequently Asked Questions [Internet]. Australia: Australian Pharmacy Council; Date Unknown [cited 2015 Apr 25]. Available from: https://pharmacycouncil.org.au/content/index.php?id=38
- The Society of Hospital Pharmacists of Australia. How to become a pharmacist [Internet]. Australia: The Society of Hospital Pharmacists of Australia; Date Unknown [cited 2015 Apr 25]. Available from: https://careers.shpa.org.au/index.php/how-to-become-a-pharmacist/
- Pharmacy Board of Australia. Renewal FAQ for Pharmacists [Internet]. Australia: Pharmacy Board of Australia; 2013 Sep 25 [cited 2015 Apr 25]. Available from: https://www.pharmacyboard.gov.au/Codes-Guidelines/FAQ/Renewal.aspx
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Pollution Law
Question 1 Introduction We will consider water and air pollution. We will look at what causes harm to each of these media. We will then move on to consider the legal provisions in place to counteract or prevent that harm. Water This is mainly concerned with inland and coastal waters and the quality of these water bodies. Water quality can be affected by natural events or by the actions of people. Firstly, natural events like heavy rainfall and flooding can create pollution problems from farm runoff.
Conversely, drought can cause problems with pollutants being more concentrated. Generally, however, the main kinds of harm that lead to water pollution are caused by individuals or organisations. The harm is mainly as a result of discharge to water and can be as a result of intentional actions like littering, fly tipping, or dumping waste. The most common is discharges to water, from sewage works, the content of which is highly polluting. Other discharges to water can be from industries.
This may involve toxic or organic pollutants being discharged into water. This can also involve Leachate from waste sites.
Agricultural water pollution is another source of pollution, which can lead to pesticides or fertiliser being passed into water streams. In addition, farming can also contaminate groundwater, through the means of sheep dips. “Agriculture is the number one polluter of water in the country” [1] was the chilling finding of the Policy Commission on the Future of Farming and Food (2002). Other sources of water pollution is the often much publicised oil and fuel spills that happen from time to time. These may be caused by accidents. Accidents in the transporting of sometimes hazardous substances can also end up in the water streams or ocean. Damage through accidents may not involve toxic substances but a great deal of harm can be caused by “innocent substances” like milk and apple juice.
The impact that these substances may have will vary depending on the amount of the substance being released and the location where they are discharged. It is important to note that we generally consider water pollution to arise where water is rendered unfit for use – either for human consumption or aquatic life. The focus of this aspect of environmental law is not just pollution to water but also the setting of desired standards of water quality. Legal controls over water quality and pollution The body responsible for water quality in England is the Environmental Agency (EA). The main statutory instrument that applies is the Water Resources Act, 1991 (WRA, 1991). In addition, EC law is increasingly affecting the practices in England. The EC Water Framework Directive[2] is expected to have a large impact on all aspects of pollution control and water quality management. Indirectly, international law also applies, especially in terms of treaties and the UK’s obligations under these treaties. We will now look into the legal controls more closely. Firstly it is necessary to consider the quality of the public water supply. This is controlled by the Water Industry Act 1991(WIA,1991), s67 and the Water Supply (Quality) Regulations 2000[3]. These provide that domestic water must be wholesome.
Enforcement orders issued by the Secretary of State are the main means of enforcement, and fines may be issued against Water supply companies for breaching these provisions. The WIA, 1991, s70 makes it an offence to supply water that is unfit for human consumption.[4] Secondly, we will look at the WRA, 1991. This act put in place the requirement for consents to be obtained from the EA in the following circumstances:
- A discharge of trade or sewage effluent into controlled waters;
- A discharge of trade or sewage effluent through a pipe from land into the sea outside the limits of controlled waters;
- Any discharge where a prohibition is in force.
S85 of the WRA, 1991 provides that it is an offence to “cause or knowingly permit” a discharge. Having consent and observing the terms and conditions of the consent will be a defence to this provision. Trade effluent includes effluent from trade premises which includes agricultural, fish farming and research establishments. [5]Sewage effluent includes any effluent from sewerage works, but excludes surface water. [6] Discharge is not defined in the act and could conceivably cover accidental discharges into water as well as intentional discharges.
Controlled waters are defined in s104 of the act and include most inland and coastal water. Inland water includes rivers, streams, underground streams, canals, lakes and reservoirs (even if they are temporarily dry). Groundwater which is water that is contained in wells and boreholes and in any underground strata are also within the definition. A river bed[7] and a man made ditch that drains into controlled waters[8] have both been held to constitute controlled waters. Streams that have been diverted from their original water course are also considered controlled waters.[9] A prohibition was introduced by the Water Act, 1989, s86, and it prohibited certain discharges. These include discharges of substances that are prescribed by regulations and include dangerous substances. The EA may make annual charges for discharge consents under the Environment Act, 1995[10]. This covers some of its costs incurred in managing water resources. Consents must be applied for in compliance with the WRA, 1991 and Control of Pollution (Applications, Appeals and Registers) Regulations 1996[11]. For the protection of groundwater, the Groundwater Regulations 1998 [12] set out the consent requirements. It is now necessary to consider water pollution. S85 (1) of the WRA, 1991 creates a general offence of causing or knowingly permitting any poisonous, noxious or polluting matter or any solid waste to enter controlled waters.
Defences are set out in s88, and include discharge consents from the EA. In addition, s89 provides that in an emergency it is possible to discharge into controlled waters in order to avoid danger to life or health. If this occurs the EA must be informed of this as soon as reasonably practical and the discharger must also take reasonable steps to minimise pollution. This defence was successful in the case of Express Ltd (t/a Express Dairies Distribution) v Environmental Agency[13]. The offence relates to causing and knowingly permitting.
Causing is subject to strict liability as no knowledge is required. In the case of Alphacell Ltd v Woodward [14] it was held that if the activities cause pollution, it is only necessary for the activities themselves to be intentional. Knowingly permitting is not subject to strict liability as knowledge is required. It is now important to mention The Water Framework Directive[15] which will be phased in over a number of years. It will require a fundamental change in existing law. Its man aims are to prevent deterioration and protect aquatic ecosystems; promote sustainable water consumption by protecting available water resources; progressively reduce discharges, emissions and losses of priority substances; reduce groundwater pollution and prevent further pollution an to provide good quality surface and groundwater. Finally, we will briefly consider international law, which mainly relates to marine waters. This is contained in international treaties the main one concerning the UK is from the 1992 OSPAR Convention, which made the Declaration of the International North Sea Conference and the Hazardous Substance Strategy.
Parties to this convention are bound to make every endeavour to move toward the target of cessation of discharges, emissions and losses of hazardous substances by 2020. Air Most of the sources of air pollution are man made. The burning of some fossil fuels releases sulphur dioxide into the atmosphere. This occurs mainly from coal fired power stations and the burning of marine fuel on container ships and oil tankers. Another main contributor to air pollution is carbon emissions, mainly from vehicles, power stations and industrial processes. Indeed vehicles are responsible for releasing lead into the atmosphere through leaded petrol and also chemicals released from diesel emissions.
Also, vehicle exhaust gases can release Volatile Organic Compounds into the atmosphere. Another source is the release of CFCs from aerosol sprays and refrigerants in fridges and air-conditioning units. These gases contribute to ozone depletion and therefore increase ultraviolet radiation levels. In addition the production and transporting of coal, natural gas and oil can emit methane. This can also be emitted from landfill sites.
Natural processes causing air pollution are volcanic eruptions, wildfires and methane gas from herds of cattle. Air pollution can cause acid rain, which can kill fish, birds and plant life and even destroy buildings. Air pollution also causes climate change through greenhouse gas emissions. Finally, air pollution can also be harmful to humans as it has been linked to respiratory problems, cancer and brain damage. Now it is necessary to consider the mechanisms in place to control air pollution. Legal controls to control and prevent air pollution. The first known legal controls over air quality took place in 1273 when Edward I introduced the first controls over smoke in London.
Today the law that is applicable is a combination of international, EC and national law. As air pollution creates international problems like transboundary pollution, ozone depletion and more latterly, climate change, international negotiated agreements are a main source of the law in this area. The first main case involving Transboundary pollution was the so called Trail Smelter case [16] which concerned pollution from a Canadian smelter which caused destruction to crops and forests over the border in the US. An attempt to control air pollution between neighbours was The Geneva Convention on Long-Range Transboundary Air Pollution in 1979.The treaty came into force in 1983 and sets out principles of cooperation and joint research.
Ozone protection has been dealt with by the 1985 Vienna Convention for the protection of the Ozone Layer. Climate change has been addressed by the 1992 Framework Convention on Climate Change. As a result of these conventions, protocols have been developed to combat the problems identified, in the form of specific measures to combat the problem. Likewise, the EC has now become a major force in determining air quality standards. This has been achieved through a series of directives specifying air quality limits for particular substances and controlling emissions from transport, industry and power stations. In addition the EC has voluntary agreements with car manufacturers and EU wide emissions trading schemes. The Secretary of State for the Environment, Food and Rural Affairs has a legal duty to comply with the European air quality standards. This has been delegated to the Environmental Agency and local authorities which operate pollution control powers.
The National Air Quality Strategy is the main policy in this are of the law. It contains two standards for identified pollutants, namely a general target standard and an alert threshold. The general standard forms a long term objective for policies and legislation. The alert threshold triggers the need for specific remedial action when it is exceeded. Under the strategy local authorities undertake air quality assessments and take action where the objectives are not being met. They also have control over emissions of dark smoke and fumes under various statutes.
Finally, the UK has adopted economic instruments to control greenhouse gas emissions. This is in the form of the Climate Change Levy and the UK Emissions Trading Scheme. Other voluntary agreements like Climate Change Agreements have been adopted. Question 2 Report: Prepared by Legal Environmental Consultant’s Limited To: The Board of Directors of Transglobal Enterprises plc Topic: Environmental Legal Aspects of British Metal and Waste Corporation plc (MBWC) This report will cover two specific problems identified. It will deal with each separately. (a) The first part of the report examines the planning permission to extend the use of Gawshope Quarry. This is presently the subject of a High Court application by a local pressure group who wish the permission to be quashed on the following grounds:- firstly, the wrong criteria were used in granting the permission in relation to EC and UK law and secondly, that the National Waste strategy had been ignored. It is necessary to consider the grounds of the appeal, to estimate the likelihood of its success. Firstly, in regard to EU and UK law.
The Landfill Directive[17] concerns the design, operation and aftercare for landfill sites. It set targets for the reduction of the amount of biodegradable municipal waste put into landfills by imposing three stages of reduction. The Landfill Regulations (England and Wales) 2002 [18] implemented the requirements of the directive to UK law. Secondly, the National Waste Strategy (NWS) is contained in Waste Strategy 2000 for England and Wales[19]. It was produced as a result of the Environment Act 1995 inserting a requirement to produce a NWS under s44A of the Environmental Protection Act 1995. The overall aim of the NWS is to make decisions in line with the Best Practicable Environmental Option (BPEO) for particular wastes. Article 8(b) of the Landfill Directive (99/31) places an obligation on member states to ensure that any landfill project is in line with the NWS. This must be considered when planning permission is applied for. In the case of R (On the application of Blewett) v Derbyshire CC[20] the facts were analogous to the present case. Planning permission was granted to extend a landfill site and a local resident applied to court to have it quashed on the grounds that the local authority had failed to assess whether the proposed landfill was the BPEO for waste disposal. The Court of Appeal found that the policies in the Strategy were not determinative and it was not required before granting planning permission that the BPEO is achieved.
The reason for this is that the BPEO is not overriding. In this case the Court of Appeal refused to interfere with the High Courts findings that the local planning authority had failed to demonstrate that they had given sufficient weight to the BPEO. Conclusion Without knowing the particular facts of the application for an extension of Gawshope Quarry, it is difficult to advise on the chances of success. Suffice it to say, that in the light of Blewett’s case it seems clear that a planning authority is required to understand the policies in the NWS and attach significant weight to the achievement of these policies. It should then consider if there are more important considerations which outweigh the attainment of these objectives. (b) This part of the report concerns the pending prosecution of BMWC for alleged offences under the Water Resources Act 1991. The steelscale plant in Cumbria had an accident and this resulted in discharges which blocked a stream.
This caused the course of the stream to be altered and flooding occurred. In addition contaminants in the discharge caused chemical levels in the stream to rise beyond safety levels under drinking water legislation. Under the Water Resources Act, 1991 s85 (1) it is an offence to cause or knowingly permit any poisonous, noxious or polluting matter or any solid waste to enter controlled waters. We will look at each element of this section to determine if an offence has been committed. Firstly, controlled waters are defined in s104 of the act and include most streams in the UK including the stream in question. Secondly, there is no definition in the act of poisonous, noxious or polluting matter. In the case of R v Dovermoss Ltd [21] polluting was given the very wide meaning of the potential to cause harm to animals, plants or those who use the water. Actual harm is not necessary.
The fact of the pollution is what is prevented in this act – i.e. the discharge or entry of polluting matter into the stream. On the face of it contaminants in this particular discharge would be considered polluting at the very least if not poisonous or noxious. Thirdly, the requirement of causing must be considered. This lays down a requirement of strict liability as no knowledge is required. An important case is the case of Alphacell Ltd v Woodward [22] where it was held that Alphacell was guilty of causing pollution merely by carrying on the activity that caused the pollution. All that is necessary is the intention to carry on the activities, and then to show a causal link between the activities and the discharge. In our case, BMWC did carry on the activity that caused the pollution. It may be possible to argue that its activities were not the cause of the pollution. In Empress Car Company (Abertillery) Ltd v National Rivers Authority [23] Lord Hoffman stated that ”the true common sense distinction is, in my view, between acts which although necessarily foreseeable in the particular case, are in the generality a normal and familiar fact of life, and acts or events which are abnormal and extraordinary.” Whether the accident in this particular case could be foreseeable would depend on what kind of accident it was and whether it was normal or acceptable accident in the steelscale industry. Fourthly the requirement of knowingly permitting will briefly be considered. This occurs where a person knowingly permits and applies when knowledge of the activity occurs and no action is done to prevent the harm. Company directors can be guilty of water pollution offences under this section in addition to any charges brought against the company.
This will occur when there is consent, dishonesty or neglect on the part of the directors of the company. This is under s217(1) of the Water Resources Act, 1991. In addition, the company can also be held vicariously liable for the acts of its employees, as was held in the case of National Rivers Authority v Alfred McAlpine Homes East Ltd[24] in regard to offences under the WRA, 1991. There are defences to the provisions of the above section. One of these is if the offender is the holder of discharge consent from the EA, and is acting in accordance with that consent. Another defence is if the offender holds an IPC authorisation or an IPPC permit. A third defence is where the offender holds a waste management licence or waste disposal licence unless the offence is discharging trade or sewerage effluent or where a prohibition is in force. Conclusion It seems that the requirements of strict liability would make the chance of a prosecution against the BMWC succeeding. It should be investigated whether any of the above defences are available to BWMC. If not, it seems likely that any prosecution would succeed against the company. Bibliography
- Bell, S and McGillivray, D: Environmental Law (6th Edition). Oxford University Press, 2006.
- www.lawtel.co.uk
- www.westlaw.co.uk
- www.defra.gov.uk
- www.ukela.org
Footnotes
[1] Farming and Food: A Sustainable Future (2002), p.68. –
[4] R v Yorkshire Water Services Ltd [2002] Env LR 18
[7] National Rivers Authority v Biffa Waste [1996] Env LR 227
[8] Environmental Agency v Brock plc [1998] Env LR 607
[9] R v Dovermoss Ltd [1995] Env LR 258. [10] S41-42 [11] SI 1996/2971 [12] SI1998/2746 [13] [2003] Env LR 29 [14] [1972] AC 824 [15] 2000/60/EC [16] US v Canada (3 RIAA 1907 (1941) ) [17] 1999/31/EC [18] SI 2002/1559 [19] Cm 4693, 2000 [20] [2005] Env LR 15 [21] [1995] Env LR 258 [22] [1972] AC 824 [23] [198] Env Lr 36 [24] [1994] 4 All ER 286
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Negotiable Instruments under State and International Law
Negotiable Instruments 1 Part 1 Negotiable instruments are governed by both state and international law. Universally, the instruments are governed by the Universal Commercial Code (UCC) which defines negotiable instruments as unconditioned writing that promises payment of a fixed amount of money. Under the UCC checks are chiefly covered in article 3 and 4. The articles generally address check fraud litigation that emanate from check alterations, forging of the maker’s signature, payee’s check endorsement or either counterfeited checks created by dishonest third parties (Ames, 1972). In a bid to help protect and recover losses made by victims of fraud, the UCC by implication endorses a policy that the loss resulting from fraud is best placed on the party that is best placed to prevent the occasioning of the loss. This implicit policy gives light in Nicholson’s scenario that he has a chance of recovering his money back from either bank. In a real case scenario, a drawer’s check moves downstream from the drawer to the check’s payee. The check then moves from the payee to the drawee bank that in turn pays out the amount shown. The offender may at any time in the sequence enter the stream. In most case scenarios, since the offending party who commits the fraud often disappears into thin air without a trace, the claim involves the injured party against the drawee bank that processed unendorsed or forged check. The drawee bank is generally liable in cases of processed checks with forged drawer’s signature while the depository bank is liable for claims that involve the payee’s endorsement of the check (Ames, 1972). In Nicholson’s scenario, the depository bank is liable for processing a check that did not bear the payee’s endorsement. The bank depository bank had direct contact with Michael Kittinger who presented the fraudulent check. Thu,s the depository bank was in the best position to verify the check’s endorsement. The bank ought to have taken reasonable caution to establish that the check was not endorsed by the payee and was fraudulent thus making it liable in recovering Nicholson’s money. In cases of double forgery where the drawer’s signature and endorsement are forged or unauthorized, the drawee bank is generally liable as it is held responsible for verifying the drawer’s signature. Subsequently, Nicholson may recover his money by suing the depository bank for conversion. The law permits an instrument to be converted if other than negotiation, it is taken by transfer, from an entity that is not permitted to implement the instrument or a bank that makes payment to a person who is not at liberty to implement the instrument or obtain any payment. According to the law, in a conversion claim, the measure of damages is presumed to be instrument’s face value (Ames, 1972). To improve Nicholson’s chances of recovering his money back, the law ought to be revised in fraud litigation actions to give rise to a new cause of action for contributing to the recovery of the losses solely based on shared culpability. Most state laws permit a bank to only charge customer’s accounts for checks that are deemed to be ‘properly made.’ The provision in turn creates room for claims against banks that impose charges its customers for checks ‘not properly payable.’ The claim may constitute an action for a breach of contract claim against the bank by a customer for paying an item that is not ‘properly payable.’ However, the parties in the contract may decide by agreement the standards b which the bank’s responsibility maybe measured if the standards are not manifestly unreasonable (Ames, 1972). Additionally, to improve Nicholson’s chances of recovering his money courts ought to embrace the use of conversion in check fraud claims and that depository bank ought to be allowed to recover from upstream banks for errors that may result in shifting liability. Nicholson may also sue the bank for indemnification and negligence to recover his money back (Ames, 1972). Part 2 Under the auspices of the UCC Joey can indeed recover his money from the 24 Hour check cashing company. The drawee bank, in this case, the 24 Hour check cashing company that paid out money after the check was presented is generally liable for claims that involve drawer’s signature. The bank’s liability arises as the bank is liable for claims that involving the drawer’s signature. The bank is held responsible for verifying the signature and anything that may arouse suspicion on the drawer’s check (McKeehan, 2001). In Joey’s scenario, he was mugged by his assailant Stan leading to his bleeding on the check. Stan then took the check with blood stains on it and cashed it on the 24 Hour check cashing company where he withdraws all the money. The teller ignoring the blood stains on the check after verifying the check’s proper endorsement handed over the money to Stan. The availability of blood on the check ought to have raised reasonable suspicion about the check. The bank via its employee had a duty to verify the authenticity of the check which was glaringly brought into issue by the availability of blood stains on the check. However, the bank failed to act on its duty of exercising ordinary care and negligently issued the money to Stan even after presenting a check that was doused in blood. On a reasonable point of view, the issuance of the money was as a result of a negligent act that ought to have been prevented and led to the loss of Joey’s money. Because the negligent act was perpetrated by the bank’s employee, the doctrine of vicarious liability makes the bank liable for any wrongs done by its employees in the scope of their work. In recovering his money, Joey can bring a claim of negligence against the bank based on the bank’s negligent act (Whaley, 1974). Subsequently, Joey can also plead legal duress as his defense against the bank’s refusal to repay his money back. Scholars articulate that an individual can plead duress in a claim brought against a bank for recovery of money if the individual can prove that he or she was the subject of immense pressure caused by another person at the time of the deed’ execution. Joey signed the instrument under threat and subject to physical violence that was evidenced by his bleeding on the check presented to the 24 Hour check cashing company by Stan. If an entity is forced to sign an instrument without his or her will, the entity is not legally bound to honor the terms of the instrument. Joey, in this case, was not bound by the transaction as his endorsement was obtained under duress (Palmer, G. E. (2001). Under the auspices of the UCC which protects negotiable instruments, duress invalidates delivery. Delivery of the instrument as well as the transfer of ownership from one person to another is solely based on mutual consent and duress invalidates that consent, thus constituting an illegality. There must be an intention on the part of the holder, in this case Joey to relinquish ownership of his possession to Stan. However, this intention was absent in the instrument (Palmer, G. E. (2001). Stan’s endorsement of the check was forcefully sought which constituted an illegality. An illegality renders a contract void and thus the bank is under no duty to enforce an illegal contract and ought to refund Joey his money back (Palmer, G. E. (2001). References Ames, J. B. (1972). The Negotiable Instruments Law. Harvard Law Review, 241-257. McKeehan, C. L. (2001). Negotiable Instruments Law. Am. L. Reg., 50, 437. Palmer, G. E. (2001). Negotiable Instruments Under the Uniform Commercial Code. Michigan Law Review, 255-310. Whaley, D. J. (1974). Negligence & Negotiable Instruments. NCL Rev., 53, 1.
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Ownership of Land
This question requires detailed analysis on laws relating to ownership of the land and title to items found in or on the surface of the land. As the principle of law states ‘whoever owns the soil owns everything up to the heavens and down to the depth of the earth’. A person having proprietary rights in the land also has the control of it above and below the surface of the ground, anything that is part of the land, and anything that is sufficiently attached to the land.
However this does not mean that a person having control of the land has the right to anything that may be in or on his land. A clear distinction has been drawn between situations where objects are found in the land or on the surface of the land. If an object is found in or attached to the land, the owner of the land has the best claim to it providing that the true owner was not found. Where the object is resting on the ground the position will be different, because the finder of the object then has a better claim to the object. This issue has troubled lawyers long as to who is the lawful owner of items found in or on the land; I shall be discussing the principles of law in question with reference to case law and relevant Statutory Acts Possible claimants who may be entitled to claim the pottery vase found are the Crown, under the Treasure Act 1996; Bryn, as the finder of the object; Carrie as his employer or as a person in occupation of the land; and Zac as the owner of the land.
The pottery vase discovered by Bryn may belong to the Crown as treasure under the Treasure Act 1996. An item that falls within the statutory definition of ‘treasure’ is the property of the Crown.
According to s.1 of the Treasure Act 1996 ‘treasure’ is defined as an object which is not a coin and is at least 300 years old either gold or silver with 10% of precious metallic content. Under para (a) of s.1 (1) coins can also qualify as a treasure where two or more coins from the same find are found and they are at least 300 years old containing at least 10% of precious metal. We do not have sufficient information to suggest whether the coins found would be ranked as a treasure or not, however if it was a treasure the pottery vase would also be likely to be ranked as a treasure. Assuming that the object found is not a treasure.
The next issue is to identify who has the best title to it. The claim to ownership depends on where the object was found. Due to insufficient information it may be assumed that the object was found on the surface of the ground. Bryn as the finder of the object may have a good claim for it. The case of Armory v Delamirie suggests that the finder does not obtain an absolute right to the finding but he can keep it providing that the true owner is not found.
In English law the person who can establish a prior possession to an object has a better claim than the person who acquires the possession later] Costello v Derbyshire Chief Constable. In this situation the issue is whether Carrie, the owner of the land on which the object was found can be considered to have possession of it before it was found. It is possible for Carrie to have possession of the object which is lying around her land even though she doesn’t know about it, but only if she has manifested an intention to exercise control over the land and things upon it i.e animus possidendi. This depends on whether the land where the object is found was open to public or not, thus in the case of Brides v Hawkesworth the courts held that a traveller who found a bag of money in a shop has a better title to it than the owner of the shop because the shop was open to public at the time he found the object.
In parker v British Airways Board, British airways exercised partial control of airport lounge by checking tickets and allowing specific passengers to enter the lounge was held to be insufficient to allow it that it had superior rights to any objects found in the lounge. The item was found in Carrie’s garden which is a private property and Bryn was there only for gardening purposes, the requisite intention to manifest control will be inferred readily (). Carrie may have a better claim than Bryn on the grounds that Bryn was employed by Carrie and as an employer she had a clear right to direct how anything in the garden should be dealt with. Where in the course of employment an item is found by an employee, his employer has a better right to it than the employee; this was the decision in South Staffordshire Water Co v Sharman. This principle also includes independent Contractors City of London Corporation v Appleyard.
As Bryn was employed by Carrie and anything that he finds on the land during the course of his employment, he finds on Carrie’s behalf. Bryn would therefore have mere custody of the item and Carrie would have the legal possession of the item, Carrie is likely to have a better claim than Bryn.
Against this there is a strong counter-argument that the pottery vase was found buried in the ground by Bryn whilst gardening. In English law where an item is found in the ground the landowner (Zac) is entitled to it, providing that the true owner cannot be found. Animus possidendi of the free hold owner of the land is presumed where chattels are attached or buried in the land, so he will have superior rights than the finder of the object parker v British Airways Board. In the case of Elwes v Brigg Gas Company the lease holder could not claim a better title to a pre-historic boat found buried in the soil.
It was held to belong to the freehold owner of the land. In the given scenario if the pottery vase was found buried in the ground then Zac being the freehold owner of the land would have a better title. Alternatively if Carrie could prove that the item had come on to the land during her tenancy, she may claim a better title than Zac. The next issue is to identify who has a better title to the diamond brooch, which Carrie found whilst walking on the land which was owned by Mr Cartwright. Again due to insufficient information it cannot be suggested whether the item found falls under the definition of ‘treasure’ or not so ownership would not vest in the Crown.
Possible claimants who may be entitle to claim the brooch might therefore include Mr Cartwright, as the true owner of the land; and Carrie by virtue of ‘finders keepers’ principle. Assuming that the object found does not qualify as a treasure, we then have to find out who could claim a better title to the brooch. In the given situation the brooch was found sticking out from grass, which might have come up to the surface due to the rain. Where a chattel is attached to the land or buried under the land the freehold owner of the land can generally establish a possession to it prior to that of the finder.
The freehold owner of the land in this situation is Mr Cartwright. To acquire property rights in the item Mr Cartwright has to show that he had manifested intention to exercise control over the land. Where the chattel is affixed to or buried in the land, the freehold owner’s intention is presumed, so Mr Cartwright will have right to the item superior to those of the finder parker v British airways, if the was found in the ground. The next issue is to identify who has a better title if the item was found on the ground and it was never buried under the ground. The party who lost the brooch originally has an earlier property right in the brooch, and if the party came forward it would be able to claim the title to the brooch.
We do not have sufficient information available to conclude whether the true owner of the brooch will be able to claim it or not. The next party which may have a superior claim to assert the title is Carrie.
This scenario can be related to the case of Hannah v peel, where the claimant found a brooch in defendant’s house which was not attached to the ground nor buried under. She gave it to the police who then gave it back to the defendant who sold it. The claimant sought to claim back the possession of the brooch. It was held that the landowner was not aware of the existence of the brooch until it was brought to his attention by the police; therefore he cannot claim any title over the item found.
On the one hand, the result in parker v British Airways Board is consistent with the position in Hannad v peel. British airways did not acquire a property right in the bracelet simply because it was lost and found on its land The court considered the decision in Bridges v Hawkesworth and decided that The point to discuss here is the important general principle that if a party takes physical control of an object, that party acquires a property right in that. This is a fundamental principle of law, so even a thief can rely on it even though he has dishonestly taken control of an object he still acquires a property right in it Costello v Chief Constable of Derbyshire. So in the given situation Carrie clearly has a property right in the brooch, she acquired the right simply by taking control of the item. Just as the chimney sweep’s boy in Armory v Delamrie acquired a property right by taking physical control of the jewel Carrie has acquired the right to the brooch.
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Primary Duty of Maintenace in Islamic Law
- Introduction:
- Primary Duty of Maintenance:
- Wife may file suit in the family court with regard to maintenance.
- Wife can in addition file application in the office of chairman of union council.
- If your lover becomes disobedient.
- If she is incapable to perform matrimonial intercourse.
- If she will not live with the woman husband unjustifiably.
- If she gets to be widow.
- If she becomes able to maintain herself.
- In case of irregular or emptiness marriage.
- Where my wife been taken aside forcibly by someone else.
- In case the particular fault is on her own part.
- If my wife been imprisoned.
- Apostasy.
- PUNJAB CHANGE:
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Organised Crime in an Increasingly Globalised World
- Bean, Drugs and Crime, (William, 2002)
- Castells, End of Millennium, Volume III: The Information Age: Economy, Society and Culture, (Wiley, 2000)
- Edward and Gill, Transnational organized crime, Perspectives on Global security, (Routledge, 2003)
- Pearce and Woodiwiss, Global Crime Connections, Dynamics and Control, (Lumiere Press, 1993)
- Quiggin, Seeing the Invisible: National Security Intelligence in an Uncertain Age, (World Scientific Publishing, 2007)
- Sheptycki, Transnational & Comparative Criminology, (GlassHouse Press, 2005)
- Aguilar-Millan,Foltz, Jackson, andOberg, ‘The GlobalizationofCrime’,(2008) The Futurist, < https://blackboard.angelo.edu/bbcswebdav/institution/LFA/CSS/Course%20Material/BOR3304/readings/The%20Globalization%20of%20Crime.pdf>, accessed 16 March 2014
- Farer, ‘Fighting Transnational Organized Crime: Measures Short of War’, in Tom Farer, (ed.), Transnational Crime in the Americas, (Routledge, 1999).
- Mittleman, ‘The Dynamics of Globalization’, in James Mittleman, (ed.), Globalization: Critical Reflections, ( Lynne Rienner Publishers, 1997), 6-10
- Williams, ‘Organizing Transnational Crime: Networks, Markets and Hierarchies’, (1998) Transnational Organized Crime, Vol.4, Nos. 3 and 4, 57-86.
- UN Office on Drugs and Crime (UNODC), The Globalization of Crime: A Transnational Organized Crime Threat Assessment, 17 June 2010,< https://www.refworld.org/docid/4cad7f892.html> accessed 15 March 2014
[1] James Sheptycki, Transnational & Comparative Criminology, (GlassHouse Press 2005) p.215 [2] UN Office on Drugs and Crime (UNODC), The Globalization of Crime: A Transnational Organized Crime Threat Assessment, 17 June 2010,< https://www.refworld.org/docid/4cad7f892.html> accessed 15 March 2014 [3] Sheptycki (n.1). [4] UNODC (n.2), p. 18. [5] Philip Bean, Drugs and Crime, (William 2002) p.104-5 [6] Frank Pearce and Michael Woodiwiss, Global Crime Connections, Dynamics and Control, (Lumiere Press, 1993) p.45 [7] Manuel Castells, End of Millennium, Volume III: The Information Age: Economy, Society and Culture, (Wiley, 2000), p. 361. [8] Tom Farer, ‘Fighting Transnational Organized Crime: Measures Short of War’, in Tom Farer, (ed.), Transnational Crime in the Americas, (Routledge, 1999). p. 251 [9] Pearce and Woodiwiss (n.6) p.46-7 [10] Bean, (n. 5) p.100 [11] Thomas Quiggin, Seeing the Invisible: National Security Intelligence in an Uncertain Age, (World Scientific Publishing, 2007), p.55. [12] Adams Edward and Peter Gill, Transnational organized crime, Perspectives on Global security, (Routledge 2003), p.39.
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Organizational Effectiveness in the Criminal Justice System
- R. R. Johnson, (2011). Officer attitudes and management influences on police work productivity. American Journal of Criminal Justice : AJCJ, 36(4), 293-306.
- D. Geering, (1980). The current state of research on motivation.
- R. M. Steers, (1976). When Is an Organization Effective? A Process Approach to Understanding Effectiveness. Organizational Dynamics, 5(2), 50-63.
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Option Contracts
- Clearing the ambiguity and removing the deadlock
- Adding Some more Confusion
- Controlling Speculation
- Existing Contracts
- RBI Perspective
[1] Available at https://www.sebi.gov.in/acts/contractact.pdf [2] Notification S.O. 184 (E) dated March 1, 2000 [3] Ankit Guha, Are Option Contracts Enforceable, available at https://www.legallyindia.com/20090831159/Legal-opinions/are-option-clauses-actually-enforcable. [4] The Notification No. LAD-NRO/GN/2013-14/26/6667 dated October 3, 2013 availableat www.sebi.gov.in [5] Niskalp Investments and Trading Co. Ltd. vs. Hinduja TMT Ltd. [[2008] 143 Comp Cas 204 (Bom)] [6] SEBI Informal Guidance in the matter of Vulcan Engineers Limited dated May 23, 2011 availablehere https://www.sebi.gov.in/takeover/vulcanlof.pdf [7] MCX Stock Exchange Limited vs. SEBI, 2012 (114) BomLR 1002 [8] in the matter of Vulcan Engineers Limited dated May 23, 2011 availablehere https://www.sebi.gov.in/takeover/vulcanlof.pdf [9] MCX Stock Exchange Limited vs. SEBI, 2012 (114) BomLR 1002 [10] Nishith Desai Associates, SEBI Permits options and Pre emptive Agreements, available at https://www.mondaq.com/india/x/270684/Shareholders/SEBI+Permits+Options+And+Preemptive+Rights+Arrangements
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Mooting Bundle
WRITTEN SUBMISSION BY CO-COUNSEL FOR APPLICANT A. ISSUES TO BE DISPUTED
- Whether Section 15A of the UUCA is unconstitutional as it violates the right to freedom of speech, assembly and/or association provided for by Article 10(1) of the Federal Constitution.
B. WRITTEN SUBMISSION First submission
- Section 15A of the UUCA contravenes Article 10(1) of the Federal Constitution.
According to Section 15A of the Universities and University Colleges Act 1971, it is prohibited for a student, or an organization, body, or group of students to collect or to attempt to collect money. If they do so, they shall be liable to disciplinary action.[1] It is clear that Highland University Political Science Society, a club of which both the applicants, Mr Lee and Ms Wong are members of, was denied of any funding by the Student Affairs Division. The funding requested by the Highland Political Science Society was to finance a trip to attend a conference, Socialism 2014 in Chicago in June. The applicants, Mr Lee and Ms Wong were members of a Political Science Society which according to the Oxford Dictionary, is concerned with the branch of knowledge that deals with the state and systems of government; the scientific analysis of political activity and behaviour. Hence, by attending Socialism 2014, a conference which consists of hundreds of socialists and radical activists from around the country to take part in discussions about Marxism, working-class history, and the debates and strategies for organizing today, they would be able to participate fully and enjoy all the fundamental rights as enshrined pursuant to Article 10(1) of the Federal Constitution which states that every citizen has the right to freedom of speech, expression, assembly and association.[2] It is clear to see that by denying the funds they required for the trip, the Student Affairs Division had also denied the applicant’s fundamental right under Article 10(1). Hence, Section 15A of the UUCA further violates this freedom of expression by not allowing both Mr Lee and Ms Wong to collect money for the trip. With no funds, and no donations to finance the said trip, Mr Lee and Ms Wong are unable to exercise their basic rights under the Federal Constitution. Thus, it is clear that Section 15A of the UUCA has clearly contravenes Article 10(1) which guarantees every citizen of Malaysia to freedom of speech, expression, assembly and association. In the appeal case of Muhammad Hilman Bin Idham & Others v Kerajaan Malaysia & Others[3], the appellants were four students whom had been arrested by police during the Hulu Selangor by-election campaign for participating in political events which was prohibited by the University and University Colleges Act 1971 (UUCA). They had claimed through a declaration that the UUCA is unconstitutional. Their application had initially been dismissed by the Kuala Lumpur High Court’s Appellate and Special Powers Division in September 2010 of which the High Court’s Justice Aziah Ali had ruled that Section 15 of the UUCA does not infringe Article 10 of the Federal Constitution which deals with freedom of expression. However, on 31st Oct 2011, the Appeal Court overturned the High Court's decision in a 2-1 majority decision which also ruled that Section 15(5) (a) of the Act was unreasonable and violated the freedom of speech which was guaranteed by the Federal Constitution. In the judgement of Justice Hishamudin, “A legislative enactment that prohibits such participation in a vital aspect of democracy cannot by any standard be said to be reasonable. In my judgment therefore because of its unreasonableness, section 15(5) (a) of the UUCA does not come within the restrictions permitted under Article 10(2) (a) of the Federal Constitution and is accordingly in violation of Article 10 (1) (1) and therefore void by virtue of Article 4(1) of the federal constitution.” Justice Hishamudin also claimed that Article 4(1) states the constitution is the supreme law of the federation and any law passed after Merdeka Day which is inconsistent with this constitution shall to the extent of the inconsistency be void. He also adds that the right of free speech is given of most priority in the constitutions of many countries. It is a vital factor of democracy and respect of human dignity. This essential right is acknowledged by many human rights documents such as Article 19 of the Universal Declaration of Human Rights and Article 19 of the International Covenant on Civil and Political Rights. Since it is established that Mr Lee and Ms Wong’s freedom of expression has been violated by Section 15A of the UUCA similar to what Section 15(5) (a) has infringed in this appeal case, it is clear that Section 15A of the UUCA clearly contravenes Article 10(1) of the Federal Constitution. Second submission
- Section 15A of the UUCA does not fall within the restrictions stated in Article 10(2) (a) of the Federal Constitution.
According to Article 10(2) (a) of the Federal Constitution, the rights conferred in Article 10(1) can be restricted if the interest of the internal security or public order of the Federation is affected[4]. However, Section 15A of the UUCA only prohibits students from collecting money. It is clear that this prohibition does not concern the interest of the internal security or public order of the Federation. In the Supreme Court case of Public Prosecutor v Pung Chen Choon[5], the accused was prosecuted in the Magistrate’s Court Kota Kinabalu. He was charged under Section 8A (1) of the Printing Presses and Publications Act 1984 for maliciously publishing false news in “The Borneo Mail” on 16th July 1990. As the prosecution of the case drew near, the defence raised the question whether Section 8A imposes restrictions on the right to freedom of speech and expression in violation of Article 10(1) (a) and Article 10(2) (a) and thereby void. It was later held that this section is sufficiently connected to the ground provided in Article 10(2) (a). It is also concluded that under section 8A (1) of the Printing Presses and Publications Act 1984 is valid within the scope of Article 10(2) (a). It is can be established that in this case, Section 8A (1) fell under the restrictions of Article 10(2) (a) because the malicious publication of false news could, instigate acts which threaten the internal security of the country, impair Malaysia's friendly relations with other countries and that would lead to a disturbance of public order and provoke the commission of offences. Therefore, Section 8A of the Act could be validated to be within the boundaries of permissible restrictions in art 10(2) (a) of the Constitution and was valid. However, the Section 15A of the UUCA did not threaten the internal security of the country and therefore did not fall within the restrictions of Article 10(2) (a). This section is only concerning the prohibition of students from collecting money. It is clear to see that under no circumstances this prohibition can threaten internal security like Section 8(a) of the Printing Presses and Publications Act 1984. In addition, in the Federal Court case of Re Application of Tan Boon Liat @ Allen; Tan Boon Liat v Menteri Hal Ehwal Dalam Negeri, Malaysia & Others[6], the appellants were placed under orders of detention made under Section 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance, 1969. Representations were filed against the orders to the Advisory Board, but the Board did not make recommendations in the period of three months of the detention orders. However, the Yang di-Pertuan Agong had acted on advice to confirm the detention orders. All the three appellants applied for habeas corpus, and claims that the continuation of the detention after a period of three months from the date they were detained was illegal in regards to Article 151(1) (b) of the Federal Constitution and the provisions of Section 6 of the Emergency (Public Order and Prevention of Crimes) Ordinance, 1969. The High Court dismissed the applications and the appellants appealed to the Federal Court. Their appeal was hence allowed. In his judgement, Abdoolcader J said that, in regards to Article 10(2) (a), "The expression "public order" is not defined anywhere but danger to human life and safety and the disturbance of public tranquillity must necessarily fall within the purview of the expression. It is used in a generic sense and is not necessarily antithetical to disorder, and is wide enough to include considerations of public safety within its signification.” However, as compared to the applicants’ case, Section 15A of the UUCA has indeed imposed restrictions on the rights conferred in Article 10(1). In addition, Section 15A of the UUCA does not fall within the restriction of Article 10(2) (a) as this section does not concern the internal security of the Federation or public order which includes the protection of rights and freedom of other person. It merely prohibits students from collecting money. Hence, it is clear that Section 15A of the UUCA does not fall within the restrictions stated in Article 10(2) (a) of the Federal Constitution. C. PRAYERS FOR RELIEF The Applicant respectfully requests the Honourable Court to:
- Declare that Section 15A is unconstitutional as it contravenes with Article 10(1) of the Federal Constitution
- Declare that Section 15A of the UUCA does not fall within the restrictions stated in Article 10(2) (a) of the Federal Constitution.
- Declare that Highland University Political Science Society receive the funding needed for the trip to attend Socialism 2014.
Dated this on 11th of April 2014 Co-Counsel for Applicants
[1] S15A of the Universities and University Colleges Act 1971 [2] Article 10(1) of the Federal Constitution [3] Muhammad Hilman Bin Idham & Others v Kerajaan Malaysia & Others [2011] MLJU 768 [4] Article 10(2) (a) of the Federal Constitution [5]Public Prosecutor v Pung Chen Choon [1994] 1 MLJ 566 [6] Re Application of Tan Boon Liat @ Allen; Tan Boon Liat v Menteri Hal Ehwal Dalam Negeri, Malaysia & Others [1977] 2 MLJ 108
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Online Piracy and the Copyright
Background: The heated debate about the Copyright(Amendment) Bill has been sparked again since the re-amendment in 2014. Commonly known as the “Internet Article 23”³, it was first introduced in 2011 in order to combat online piracy. The government claimed that it is a must to amend the law due to its obsolescence, and that it can strengthen creative industry. But, many fear that it might become a tool for the government to restraint the publication of creative contents on the Internet, especially re-creations that express different political stance. Various groups including Keyboard Frontline and Neo Democrats have openly expressed their discontent of its re-introduction. Thoughts: The rapid advancement of technology has brought us convenience, but also nightmares to music producers, film makers and software developers. The current anti-piracy law and copyright law indeed do not provide enough protection to producers, which contributes to the diminishment of local creative industries in recent year. The copyright system of Hong Kong is also seriously lagging behind its regional competitors (C. Lam, 2014). Undoubtedly, an amendment is a must in order to keep up with the development of various sharing platform. The only question lies in whether the rights of individual Internet user will be deprived of by this amendment. In my opinion, the 2014 bill has some clear improvements on the balance between right of speech and copyright. The new amendments introduced new areas of exception to rights. The most notable areas include parody, satire, caricature and pastiche (IPD, 2014), which are the areas that Internet users pay most attention to. In addition, the purpose of comments, quotation and materials for distance learning are also exempted(IPD, 2014). However, some major doubts from the public remain unanswered, such as the ambiguity concerning the effects of published content on sales and profit. Moreover, the proposed areas are limited in a sense that it does not suit the needs of most Internet users. Many people have expressed their concern about the legal liability of posting non-profit re-creations that are not included in the areas of exemption, including music cover and live-stream gaming. These forms of entertainments are increasingly popular on social networks like Youtube and Twitch, and they are becoming the major forms of online entertainment. It is not hard to comprehend the negative feedback from the cyber community, given that these popular non-profit making creations do not enjoy legal exemption. Suggestions: Some terminologies in the bill seem ambiguous to many people and these terms need to be defined clearly. For example, to what extent is the “economic” damage (IPD, 2014) big enough to cause a criminal offense? How about the ways to materialize the “substitution” effect (IPD, 2014)of the content? The government has failed to answer these questions since the re-introduction of the law. Moreover, the areas of exemption is something that authorities can work on. The SAR government should refine the current proposed areas, to exempt popular forms of creations and entertainments from criminal liabilities. To conclude, the amendment bill is a double-edged sword, depending on how it is used. It can be used to combat piracy effectively and to protect intellectual properties. At the same time, it can also pose threats to the development of small scale creativity industries. It is a must for the government to realize the needs of Internet users and make further changes to the amendment. Share this:
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Related Living in a world without sharingIn "Intellectual Property Law" Copyright (Amendment) Bill 2011: Should re-creation be exempted?In "Intellectual Property Law" Posts navigation Regulation Amendment for MPF – Appropriatestep? Monument vs. Development – Who decide which comesfirst 6 comments on “Copyright Amendment 2014, has the government doneenough?”
posting the issue about “Internet Article 23”³, which is close to us but not enough attention is paid by HK netizens. Here are my little thoughts on on the feasibility of the implementation of the law. If the amendment is passed, creating derivative works may become an infringement of copyright and thus a criminal offense. needless. Thus, I agree with you that there must be a clear guidance for everyone of how to judge whether the creative works is an infringement of copyright because it is now the government’s work to make decision on each creative works. The second question is “Who to sue”, it is difficult to identify who is the creator/user of the work from the Internet. In the past twenty years, only handful of Internet Law cases in the US and most of them are suing against companies/organization instead of individuals (Internet-law-Library). This means the law is somehow favor to intellectual properties from infringement of other business entities. If this is the case, Government should make further amendment including the Exemption of Derivative works to ease public concerns. Reference: Reply
Tse Siu Hang, Wilson (3035103112) on February 24, 2015 at 4:14 PM said: It is true that the Internet changes fast and the government needs to often examine whether the law about copyright meets the requirement nowadays, so some amendments maybe needed. However, Copyright Amendment 2014 seems to to be inappropriate. Copyright (Amendment) Bill 2014 states many more new restrictions and exemptions concerning copyright issues. The bill was a common law and it became a statutory law. This made the consideration of the judge become conservative. The judges have to strictly follow the items listed on the bill when adjudicating on cases of copyright issues. They can no longer base on the unique nature of each case to judge. According to the government spokesman, remaining “in pace with the rapid development of the knowledge-based economy” is the government’s reason for proposing the amendment (Government, 2014). Actually, the development could be far more rapid that the government can imagine. When the amendment is put into effect, the Internet may have already changed. The judges should have higher flexibility in dealing with copyright cases, but not just follow the long list of obsolescent “new rules”. Reply
highly relevant issue in the digital age. I fully agree with you in that it is necessary, and surely the government’s responsibility to clearly define and explain any ambiguities that may exist in the terminology within or influences of the amended Copyright Bill. Ambiguities can lead to unwanted loopholes that may come into existence and provide a path for people to violate the beliefs and values regarding cyberspace copyright protected by the Bill. Another point of concern raised by the amendment is the rights to charge given to the government, bypassing the wishes of the copyright owner. Current trends in cyberspace includes a significant amount of User Generated Content (UGC), such as creative materials published on the website 9GAG and much of the popular content on Facebook. In such cases, it would be unreasonable for the government to hold the rights to charge any re-creators or similar users of the content. References
Thanks for your in-depth explanation and contrast about the new and old “Internet Article 23” of the HK Copyright Bill 2011, which has stirred up my discontent towards government’s attitude in the development of creative industry in Hong Kong. It is widely believed that a global trend of increasing regulation on digital infringement of copyrighted materials has formed alongside with the escalating technology on copyright infringement. Recently, couples strikes against torrent giants PirateBay.com and Kickass Torrent has been implemented. The notion that commercial copyright infringement can harm the creator’s incentive seems uncontroversial, yet what highlighted in the Internet Article 23 is not the direct deliverance of copyrighted items, but online re-creation. It brings us to question how online recreation can possibly bring harm to the creator, and hence, its side effects on freedom of speech, and the development of creative industries. Having said that creative industry will be a stressed developing business, this amendment of internet article 23 shows that the HK government seems taking a step backward. As aforementioned in the above articles, unlike direct infringement like online sharing, or issuance of illegal copies, the economic damage prompted by merely online recreation is questioned, and cannot be easily estimated. Whilst innovations are made based on prior production, this amendment is undermining HK’s creative industry as it further discourages artists to create and rejuvenate. Therefore, in the light of its negative impact on creative industries, and the incompatibility of interests of creators, further examination is needed in this topic. An amendment that can balance interest of creators and owners is needed. Reference: O. Lam (23, Apr, 2007). Hong Kong: Internet Article 23. Global Voices. https://globalvoicesonline.org/2007/04/23/hong-kong-internet-article-23/ Reply
giving us such a clear and detailed introduction of the copyright issue in Hong Kong. When discussing the amendment on the copyright ordinance, I think it is also essential for us to review the enforcement of the current copyright ordinance. it is clearly stated that, even distributing a small line of a published song is an illegal action. However, it is quite clear that enforcement of such law is not strong enough. Recently, a lot of Hong Kong lyric writers have posted comments on Facebook complaining the infringement of their copyrights stalls. It is almost a tradition for stall owners to sell infringing products in the fairs. We can always see illegal copies of cartoon characters in the fairs. Local lyric writers are the latest victims. Their lyrics for popular songs are being printed on “creative” products by a stall. Although it is very obvious that this is an illegal action, no prosecution was seen. Amendments on the copyright ordinance are obviously essential. However, in this gridlock between the amendments being a political weapon or a cure for the infringements, perhaps strengthening the enforcement of the current ordinance might be an immediate solution. Reply
sharing the news with all of us While I agree with the points raised by fellow classmates stating that the old copyright law is outdated and needs to be amended in order to catch up with the ever changing trend in crime, there is the one problem with the Bill making it an unacceptable Bill to be passed for the sake of freedom of speech The 2 major problems are authorizing the government on charging the defendant, and the use of particular phrases or words in the Bill which are not clear or concise enough Even with the new 2014 revised Bill, these 2 parts still exist as part of the Bill and it causes speculation on the government on what they want to achieve with the new Bill other than revising the copyright law to catch up with the global trend. As with the government being able to charge on the behalf of the corporation will likely lead to political prosecutions with the fact that the terms used in the Bill are not well defined enough to prevent this from happening As mentioned above, most of the parody used in the political aspect can be subject to the revised Bill as the economic loss is not well defined enough, as the government will be able to prosecute as it wishes, even when the corporation has no incentive to charge the particular person, as it might to actually affect their own interests. All in all the copyright law should be revised, but not in order to limit the freedom of speech
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Online Piracy and the Copyright. (2017, Jun 26).
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Mooting 101
- Confidence - Even if you have butterflies in your stomach, try to speak with confidence. But remember, there is a fine line from being confident and sounding arrogant. Never argue back against the court. You are there to help and assist the court or tribunal and you want to try your best to put them at ease. The only way this can be done is through speaking comfortably in front of them.
- Eye Contact - Probably one of the most important and key criteria in which the judges would look on. DO NOT READ OUT YOUR SCRIPT. That is the worst thing you could do in any moots. Maintain eye contact with all the judges, try to pretend that you are having a conversation with the judges. A very formal conversation.
- Style - Speak slow and clearly. Take note, the judges are also human being, try to be as humble as possible and speak politely with giving proper road signage. If you speak too fast, this would only cause more confusion and this is not a good thing. Take breaks in between your points. This would allow time for you to prepare for any questions and getting ready for your next point.
- Organization - keep your notes tidy and organized. This would be a big advantage when judges atart asking you question and you have all your notes, submission and authorities organized. A tip from the seniors is that they either bind all their submission together with their submission so that it would be easier to refer to. Or you could separate them in binders as well. Chose the most comfortable way for you and go with it. It is also advised to print your submission on a single page and not cramping all in double sided or 4 pages shrink-ed into 1. Do not be cheap.
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Negligence and Duty of Care
Duty of care is the first element of negligence and therefore, in order to discuss further on duty of care, one would have to first define the tort of negligence. In Blyth v Birmingham Waterworks Co, the courts defined negligence as an omission of something which a reasonable man would do and the doing of an act which a reasonable man would not do. In Heaven v Pender, the courts held that the presumption of duty of care arises when one person is placed in a position with regard to another person or property, it is in ordinary sense that if he does not use reasonable ordinary care in his conducts, he would cause danger or injury towards the other person or property.
Therefore, ordinary care is required to prevent the occurrence of such danger.
In Stovin v Wise, the courts explained that generally there is no duty to rescue a stranger from danger. The duty mentioned above is regarding duty that is imposed by law or in other words, it is a legal duty. Test to determine the standard of duty of care. There are a few test that is used in determining the existence of duty of care. The primary test is the neighbour principle established in the well-known case of Donoghue v Stevenson.
In this case, Lord Atkin laid down that the rule that you are required to love your neighbours becomes a law by itself and it requires one to take a reasonable care to prevent any acts or omissions that can be reasonably foreseen to be likely to cause injury to your neighbour. The question posed to this principle is regarding who is one’s neighbour in law.
The courts held that neighbour in law is someone who is directly affected by one’s act or omission.
It is a reasonable man’s test whereby the courts would have to determine whether a reasonable man would foresee that his conduct would affect the plaintiff adversely. If the answer to this hypothetical question is yes, then the plaintiff is considered to be his neighbour and he owes a duty of care to the neighbour. It is essential to note here that the neighbour principle requires the defendant to be a foreseeable victim and thus, in order for the defendant to be a foreseeable victim, there has to be a close proximity. Therefore, the neighbour principle requires the plaintiff to be of a close proximity with the defendant.
The plaintiff would not be a foreseeable victim if there is no proximity between the plaintiff and defendant.
In the case of Home Office v Dorset Yacht Co Ltd, the courts held that the principle laid down in Donoghue v Stevenson should be regarded as a milestone in determining whether there exist a duty of care. This principle significantly assist the development of the law of negligence. Prior to the case of Donoghue v Stevenson, there was vagueness in the law regarding civil liability for carelessness. In an 1889 textbook, there was a list containing fifty-six various duties of care. Therefore, the judgment in Donoghue v Stevenson brought an end to the chaotic situation and had introduced the law of negligence as a separate civil wrong.
The next test used by the courts to determine whether duty of care is established is the Anns test laid down by the courts in Anns v Merton London Borough Council. This is a two-stage approach laid down by Lord Wilberforce whereby the first is to determine whether there is a relationship of proximity between the alleged tortfeasor and the person who had suffered the loss. If it foreseeable that the carelessness of the tortfeasor would lead the other party to suffer damage, then a duty of care would on prima facie be established.
The second stage of this test requires the court to take into account any considerations that may negate the said duty or to reduce and limit the scope or group of persons that the duty will be imposed upon. This two-stage approach in essence is to determine whether it is reasonable to foresee that the defendant’s act or omissions will cause any damage to the plaintiff.
If it is reasonable to foresee that the defendant’s act would cause harm to the plaintiff, then there exist a presumption of duty of care. This test receive heavy criticism in Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd. The courts in this case held that the neighbour principle laid down by Lord Atkin should be proved before the duty of care is presumed to exist but the scope of the duty depends on the facts of the case. The courts should consider whether the duty of care imposed on the defendant is just and reasonable.
In Curran v Northern Ireland Co-ownership Housing Association Ltd, the learned judge, Lord Keith, held that the Anns test has been given more importance than it should have been given and held that the test need not be applicable in future cases in establishing the duty of care. The third test used in determining the duty of care is the Caparo test which is derived from Caparo Industries plc v Dickman.
In this case, there were three factors that is needed to be fulfilled to establish duty of care. The first is the courts must determine whether the damage caused is reasonably foreseen, the second is whether there is any policy to negate the duty of care and the third is whether it is just and reasonable.
If this requirements are fulfilled, then duty of care is established. It is important to note here that all three elements under the Caparo test needs to be fulfilled in order for duty of care to be established.
Development in Malaysia
In Malaysia, the courts have used all of the above test. However, the test that is currently used by the courts is the three stage test which is the Caparo test. This can be seen in the case of Majlis Perbandaraan Ampang Jaya v Stephen Phoa Cheng Loon & Ors.
In this case, the Federal Court had referred to the Caparo’s case do determine whether duty of care exist. The issue that arises in this principle is whether this principle only applies to economic loss or it may extend to all situations. The courts used the foreseeability test and held that this test applies to all situation.
The courts only had to determine whether the duty of care which is imposed upon the defendant is just and reasonable. The courts went on stating that it would be rare for the outcome of the test to be not just and reasonable. This test is used in a more recent Malaysian case which is Projek Lebuh Raya Utara-Selatan Sdn Bhd v Kim Seng Enterprise (Kedah) Sdn Bhd. In this case, the courts reiterated that the standard of care to determine negligence is that of the reasonable man and it is an objective test.
Another recent case is the case of Jordan Saw Yu Huan v Low Suan Chuan & Ors. In this case, the high court applied the Caparo’s test and the courts were of the view that it was just and reasonable to impose such duty of care upon the defendants and held that the defendants in this case had breached such duty of care.
Therefore, it is clear that the recent development in Malaysia regarding the standard of care required to establish duty of care is more inclined towards the three-stage approach which is commonly known as the Caparo’s test. The courts in Malaysia had followed the Caparo’s test because this test requires that the damage caused to the plaintiff to be reasonably foreseen by the defendant. The defendant would not owe a duty of care if he cannot reasonably foresee the damage.
Therefore, this test more straight forward as compared to the other test laid down earlier.
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Negligence and duty of care. (2017, Jun 26).
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